FEDERAL USURPATION

BYFRANKLIN PIERCEOF THE NEW YORK BARAuthor of "The Tariff and the Trusts"COPYRIGHT, 1908, BYD. APPLETON AND COMPANYISBN: 0-8377-1007-3"If, in the opinion of the people, the distribution of the constitutional powers be in any particular wrong, let it be correctedin the way which the Constitution designates."But let there be no change by usurpation, for this, though it may in one instance be the instrument of good, is the ordinaryweapon by which free governments are destroyed.."WASHINGTON."It is my duty and my oath to maintain inviolate the right of the States to order and control under the Constitution their ownaffairs by their own judgment exclusively. Such maintenance is essential for the preservation of that balance of power onwhich our institutions rest.."LINCOLN.

Published January, 1908

NEW YORKD. APPLETON AND COMPANY 1908COPYRIGHT, 1908, BYD. APPLETON AND COMPANYTO MY WIFE ANNA SHEPARD PIERCEWITHOUT WHOSE AID THIS BOOK COULD NOT HAVE BEEN WRITTENPublished January, 1908

__________________________________________________________________________"Evil for evil, a good despotism in a country at all advanced in civilization is more noxious than a bad one, for it is morerelaxing and enervating to the thoughts, feelings, and energies of the people."JOHN STUART MILL."As we cannot, without the risk of evils from which the imagination recoils, employ physical force as a check onmisgovernment, it is evidently our wisdom to keep all the constitutional checks on misgovemment in the highest state ofefficiency, to watch with jealousy the first beginnings of encroachment, and never to suffer irregularities, even whenharmless in themselves, to pass unchallenged, lest they acquire the force of precedents."MACAULAY.

Contents

CONTENTSCONTENTS ............................................................................................................................................. 2PREFACE................................................................................................................................................. 5I THE BIRTH OF THE CONSTITUTION .............................................................................................. 8The checks and balances in the Constitution upon popular government .............................................................................9Democratic spirit of early state governments ....................................................................................................................11Causes of reactionary spirit of the Constitution.................................................................................................................12Constitutional Convention.................................................................................................................................................13State conventions for adoption of the Constitution............................................................................................................16Powers conferred upon Congress ......................................................................................................................................16No inherent powers in Congress........................................................................................................................................17Executive and judicial powers ...........................................................................................................................................18Amendments to the Constitution .......................................................................................................................................18Sources of the Constitution................................................................................................................................................19Local self-government in New England and paternalism in Canada.................................................................................20Alien and Sedition Laws....................................................................................................................................................22Veneration for the Constitution .........................................................................................................................................23

II USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD ................................. 24

Origin of existing usurpation found in this period.............................................................................................................25Suspension of the writ of habeas corpus by President Lincoln and imprisonment of thousands of Northern men ...........25Writ of habeas corpus suspended by national statute which was declared unconstitutional .............................................27Lincolns comments upon his acts of usurpation...............................................................................................................29The Confiscation Act.........................................................................................................................................................29Centralization through National Bank and Tariff Acts......................................................................................................30Attitude of the President and Congress upn the effect of secession ..................................................................................31The Reconstruction Acts and the despotic powers exercised by the generals of the Military Departments......................32The Ku Klux Law and the Civil Rights Bills held unconstitutional ..................................................................................35Laws of carpetbag governments declared unconstitutional ...............................................................................................36Supervision of elections in the North by United States marshals ......................................................................................36Ejection of legislators in Louisiana by United States troops .............................................................................................37Partisan spirit of reconstruction .........................................................................................................................................37

Power of President exceeds that of any constitutional monarch........................................................................................41Popular election no restraint on arbitrary power................................................................................................................43Separation of coordinate departments of the national government....................................................................................44The acts and criticisms of the President tend to destroy the separate power of the Judiciary............................................44Proposed bill giving the President arbitrary power of removal of Federal judges.............................................................46Presidents attempts to influence the action of Congress ..................................................................................................48States prompt to remedy evils in comparison with Congress ............................................................................................50Opinions of Hamilton and others on state rights ...............................................................................................................52Executive pension..............................................................................................................................................................53Collection of customs duties in San Domingo...................................................................................................................54The seizure of Panama.......................................................................................................................................................55The discharge of negro troops without trial by court-martial ............................................................................................56The justification of usurpation...........................................................................................................................................58The unwritten law should preclude the President from dictating his successor.................................................................58

The universal seeking of aid from an all-powerful President is a menace to liberty .........................................................61Governmental favors to farmers and bankers and their effect upon the people.................................................................63Statuts considered a panacea for evils ...............................................................................................................................64Race suicide, a result of tariffs and trusts ..........................................................................................................................65Effect of imperialism upon home institutions....................................................................................................................66Playing the part of a world power results in socialism ......................................................................................................68

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The methods and characteristics of imperialism, as described by Sir Henry Campbell-Bannerman, appearing inthe United States ......................................................................................................................................................68The United States ruled from Washington as France is from Paris ...................................................................................71Growth of arbitrary methods .............................................................................................................................................72Existing conditions a presage of empire ............................................................................................................................72

V CONGRESSIONAL USURPATION................................................................................................. 74Decline of popular branch of Congress and contemporaneous growth of this branch in Europe ......................................75Government by committees and absence of public discussion the causes of decay ..........................................................76Great volume of legislation and the arbitrary methods of its passage ...............................................................................77Extravagant expenditures ..................................................................................................................................................79Hasty and ignorant legislation ...........................................................................................................................................80Absence of debate stifles worthy ambitions of members and destroys public interest in legislation ................................80Senators representatives of property..................................................................................................................................81The Senates rapid growth in power and its close relation to the President in the government of the country .................82Government of Congress undemocratic and a shelter for usurpation ................................................................................83The Department of Agriculture our most prolific source of usurpation ............................................................................84Appropriations for irrigation unconstitutional...................................................................................................................86Detailed acts of usurpation ................................................................................................................................................87Such usurpations lead to socialism and absolutism ...........................................................................................................88

VI THE UNITED STATES SUPREME COURT THE ABSOLUTE POWER .................................... 90

Possesses the most absolute power ever conferred upon a court .......................................................................................91The sources of its power to declare a national statute unconstitutional.............................................................................92Before the Civil War reluctant to declare national statutes unconstitutional.....................................................................94Our reverence for courts ....................................................................................................................................................95Danger that it may increase its powers by construction ....................................................................................................97The Legal Tender cases .....................................................................................................................................................97The Income Tax cases .....................................................................................................................................................100The Mankichi case, holding that indictment by grandjury and conviction by unanimous verdict in a murder casewere not fundamental rights...................................................................................................................................103The increasing use CHAPTER PAGES of injunctions in criminal cases........................................................................104Temporary injunctions, granted by a single judge, holding, upon mere affidavits, state statutes unconstitutional .........105

VII TREATY POWER AND STATE RIGHTS .................................................................................. 108

A treaty is the supreme law of the land, binding all the states.........................................................................................109The facts establishing this contention..............................................................................................................................110Calhouns opinion ...........................................................................................................................................................113The decisions of the courts unanimously sustain this contention ....................................................................................114The authority for state rights contention..........................................................................................................................115Difficulty with Italy over killing of her citizens by mob at New Orleans .......................................................................116Political leaders allow violent treatment of aliens for party reasons ...............................................................................116The California school statute ...........................................................................................................................................117Treaty power was never intended as a means of acquiring Asiatic territory ...................................................................118

President Roosevelts contention that state rights should be preserved only when they mean the peoples rights .........121The right of commercial intercourse belonged to the people before the Constitution .....................................................122The Constitution is to be interpreted by the facts existing at its birth..............................................................................122The regulation of commerce by the nation was intended to prevent obstructions to commerce .....................................123The Interstate Commerce Employers Liability Act........................................................................................................127Proposed Interstate Commerce Child Labor Law............................................................................................................129Judge Farrars plan of government ownership of all interstate railways approved by the President...............................130The Lottery Case, its important bearing upon the police powers of the states ................................................................131The blessings of free trade between the states .................................................................................................................134Are national officials more efficient than those of the states? .........................................................................................134The great and dangerous power exercised by the President through commissions .........................................................135

IX STATE CENTRALIZATION THROUGH COMMISSIONS AND COURTS ............................. 136

The source of local self-government and its value ..........................................................................................................137Government by commissions in Massachusetts ..............................................................................................................138New York ........................................................................................................................................................................138

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Connecticut......................................................................................................................................................................140New Hampshire ...............................................................................................................................................................140South Carolina .................................................................................................................................................................140Benefits of commissions and dangers therefrom .............................................................................................................141The Pennsylvania Ripper Bills and State House appropriations ..................................................................................142Bipartisan commissions and government of cities from state capitals ............................................................................143Legislation by committee ................................................................................................................................................143Overlegislation, sumptuary laws, and special legislation ................................................................................................144A revolution in the practice of appellate courts as to setting aside verdicts as against the weight of evidence...............145Reversals of judgments for technical defects ..................................................................................................................146The requirement of unanimous verdicts in jury trials ......................................................................................................147The slaughter through negligence....................................................................................................................................147The Star Chamber of Colorado........................................................................................................................................147John Doe warrants and exercise of arbitrary power in New York City ...........................................................................148Abuses a pretext for interference by the national government ........................................................................................149The remedy......................................................................................................................................................................149The Presidents paternal interest in the Governors of New York and Massachusetts .....................................................150

Nature and growth of administrative agencies ................................................................................................................153The Ju Toy Case ..............................................................................................................................................................154Mail stoppage orders .......................................................................................................................................................157Our censors compared with those in Europe ...................................................................................................................160Recent instances of usurpation in Administrative Law ...................................................................................................161Judge Gaynor on danger of commissions ........................................................................................................................163Administrative courts in Continental Europe ..................................................................................................................164Whither our President is leading us .................................................................................................................................164

XI HOW TO RESTORE THE DEMOCRATIC REPUBLIC.............................................................. 166

The characteristics of our people endanger their liberties ...............................................................................................167Materialism the foe of liberty ..........................................................................................................................................168Instances of public virtue and its immortality .................................................................................................................169We must destroy bosses and monopolies ........................................................................................................................170The solution of public questions and the removal of evils rests directly upon the people...............................................171The first legal change should be an easier method of amending our Constitution ..........................................................172Real party government impossible at present ..................................................................................................................172House of Representatives should be supreme in lawmaking...........................................................................................173The heads of departments should be supreme in lawmaking...........................................................................................173The flood of legislation should be stopped......................................................................................................................174The right kind of party government a blessing, the wrong one a public curse ................................................................175Presidential term should be lengthened and power of independent appointment extended.............................................175Popular election of U.S. Senators ....................................................................................................................................176Second Session of Congress should not follow a Congressional election .......................................................................176Tax monopolies ...............................................................................................................................................................177Private bills and special legislation the source of corruption...........................................................................................177Corrupt governments produce dictators...........................................................................................................................177The Referendum ..............................................................................................................................................................178An indignant, fighting people can obtain their rights ......................................................................................................178

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Prefaces

PREFACEThis book is a plea for the sacredness of the Constitution of the United States. I do not mean by thisthat I consider our Constitution, framed a hundred and twenty years ago, well suited to the needs of ourexisting government. Its rigid provisions, its system of checks and balances, are an obstacle to populargovernment, and they should be radically changed by amendment, but never by construction orusurpation. This book was suggested by the President's speech at Harrisburg in 1906, in which hedeclared that the power of the Federal Government should be increased "through executive action . . .and through judicial interpretation and construction of law." A little later, at the Pennsylvania Societyin New York, Mr. Root, the head of the Cabinet and the close friend of the President, declared that ifthe people desire it "sooner or later constructions of the Constitution . . . will be found" to vestadditional power in the National Government. Hitherto governmental usurpation generally hasadvanced by silent and gradual attacks upon constitutional safeguards. Never before in human history,I believe, has the head of a constitutional government who had sworn to protect, preserve, and defendits fundamental provisions publicly advised their subversion "through executive action and throughjudicial interpretation." In recent days every abuse on the part of corporations engaged in interstatecommerce has been eagerly grasped by the President as the reason for an encroachment uponconstitutional guarantees, while every opposition to such encroachment has been seized as a reason fora stronger national government to put down opposition. Unless the people are stirred to a recognitionof the danger of such usurpations, they will never be checked.Well-defined usurpations of power by the National Government had a commencement in our CivilWar. They gathered force during the Reconstruction period, but were slightly checked in theadministrations of Presidents Hayes and Arthur and the first administration of Mr. Cleveland. In thepresent administration they have increased with amazing rapidity. We are told by the President that"such interpretation as the interests of the whole people demand " should be given to the Constitution,leaving this to be determined by the National Government. Impelled by such conceptions ofconstitutional law, a National Employers' Liability Act, applying to railway servants, has been passed,a National Pure Food Law has been enacted, and the Department of Agriculture now claims the powerof "making the standards of composition for food products." About every industry, however remotelyconnected with interstate commerce, is sought to be controlled by child-labor laws, commissions, orlicenses, and ere long we will fully adopt the methods of Continental Europe by which the local anddomestic affairs of the people are under the supervision of the central government. Unless adetermined body of citizens arise and oppose such usurpations, the doom of our state governments isalready sounded.There is no doubt that there is a natural evolution in our times toward centralization. A hundredagencies combine to bring men and industries to great central points. This tendency cannot be stopped,but centralization which results from natural causes should be sharply distinguished from concentrationof power through usurpation. It is usurpation for the National Government to take over the powers ofthe states without employing the proper means of acquiring them through amendments to the NationalConstitution. "State rights," says President Roosevelt, "should be preserved when they mean thepeople's rights, but not when they mean the people's wrongs." Even Alexander Hamilton, the mostpronounced advocate of a strong centralized national government, entertained no such conception ofstate rights as this. In the debates before the New York Constitutional Convention, he said:

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Prefaces

"The state governments are essentially necessary to the form and spirit of the general system. As long,therefore, as Congress have a full conviction of this necessity, they must, even upon principles purelynational, have as firm an attachment to the one as to the other. This conviction can never leave them,unless they become madmen. While the Constitution continues to be read, and its principles known,the states must, by every rational man, be considered as essential, component parts of the Union; andtherefore the idea of sacrificing the former to the latter is wholly inadmissible." The difficulty in ourday is found in the fact that when we speak of state rights the minds of men naturally go back to theCivil War and the claims of the South in that contest. We who oppose usurpation by the NationalGovernment of the rights of the states plant ourselves upon the same principles as those for which theNorth waged that war. The National Government has no more right to destroy the reserved powers ofthe states than the South had to destroy the powers delegated by the states to the National Government.The Constitution of the United States secures to the states their reserved rights in the same way that itsecures the rights delegated by the states to the National Government.In each of the chapters of this book, after the first, I have sought to gather the facts illustratingusurpations of government at some particular period or by some particular department. I am aware thatit may be said that the public interest in such facts is temporary rather than permanent and that politicalparties will uncover these facts. Our political parties to-day are mere political machines living upon thespoils of office and giving little heed to great public questions. The leaders of these parties deal inglittering generalities, the one seeming to favor centralization of power in the National Governmentand the other espousing the cause of state rights, but it is apparent that they do not widely differ inreality as to details. The very existence of these parties depends upon extending the power ofgovernment, multiplying commissions, licenses, offices, and special privileges. Exposure ofusurpations will never come from those who profit by usurpations.The most important public affairs are unknown to the people. Law-making in the House ofRepresentatives to-day is as carefully hidden in its secret committees from popular gaze as was theaction of the Council at Venice in the Middle Ages. In January, 1907, Mr. De Armond introduced a billin the House of Representatives conferring upon the President of the United States the right to removefrom office, without charges and without a hearing, any one or all of the twenty-nine United StatesCircuit Court judges and the eighty-two District Court judges of the United States District Courts, andthe bill gave him the power of appointment of new judges in their places by and with the advice andconsent of the Senate. This proposed bill, conferring as despotic powers upon the President as was everexercised by any ruler in the history of the world, was so hidden from the American people behind thedoor of the secret Congressional committee that probably not one citizen in a hundred thousand everheard of its existence.The United States Supreme Court, recognizing that the National Government is one of delegatedpowers, recently decided, in the case of Kansas v. Colorado, that the powers conferred upon theSupreme Court were an exception to the rule, and that as respects their judicial power there waspractically no limitation. Do the people know of this proposed law and of the danger of this recentdecision? Has any alarm of danger been sounded by political parties as to these measures? Are suchmeasures questions only of temporary interest? Is there anything which should concern free men sogreatly as the preservation of their freedom? The individual man is the essential unit of any society thathopes to retain the principles of growth and progress. His personal liberty is the source of personalinitiative and national wealth and strength. Our progress in wealth has depended more upon thatindividual liberty than upon all other causes combined. But liberty has higher ends than to fire the soulof the individual to action and to urge him to the attainment of high political ends. Lord Acton wellFederal UsurpationElectronically published by Family Guardian Fellowship

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said: "Liberty is not a means to a higher political end. It is of itself the highest political end." Libertynourishes self-respect, self-reliance, and every impulse to a higher life. It gives birth to art, literature,and culture. It ever has been the source of all the higher impulses and aspirations of men. On the otherhand, a usurping government destroys these qualities, turns the attention of the citizen to foreignpolitics, dazzles him with military glory, and destroys his aspirations for liberty. Surely the importanceto the individual man and to our country of the preservation of liberty justifies a discussion of thepresent danger from usurpation of power.Without any desire to influence men's political associations, I have attempted in this book to show thecauses of present conditions, to arouse the citizen to an appreciation of the dangers of usurpation, andto point out remedies for existing evils through amendments to the Constitution of the United States. Ishall be happy if this examination may aid in any way the present growing interest in the preservationof constitutional guarantees. The age of the birth of the Constitution produced our greatest constructivestatesmen. The period between 1820 and 1850, when its meaning was so thoroughly discussed, calledforth the great powers of Webster and Calhoun. A nonpartisan discussion today of the dangers whichexist from usurpation may happily lead to that elevation of public character and public life which willregenerate political parties and lead them to make fighting issues on the fundamental principles ofgovernment.FRANKLIN PIERCE. December 1, 1907.

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I The Birth Of the Constitution

I THE BIRTH OF THE CONSTITUTION

"Though small in their mere dimensions, the events here summarized were in a remarkable degreegerminal events, fraught with more tremendous alternatives of future welfare or misery for mankindthan it is easy for the imagination to grasp."JOHN FISKE."The Constitution has found many learned and intelligent commentators; but they have all consideredits excellence to be an undoubted and universally admitted fact. What should have been only the resultof their investigation they made the premises of their arguments. . . . The historical fact is that it was'extorted from the grinding necessity of a reluctant people.'"VON HOLST."The English Constitution, in a word, is framed on the principle of choosing a single sovereignauthority, and making it good; the American, upon the principle of having many sovereign authorities,and hoping that their multitude may atone for their inferiority."BAGEHOT.

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CHAPTER I THE BIRTH OF THE CONSTITUTION

The checks and balances in the Constitution upon popular governmentA CONSIDERABLE proportion of our American people have ever deprecated any criticism of theConstitution of the United States. Any suggestion that the constitutional adjustment of Congress, thePresident, and the Supreme Court is defective is considered unpatriotic and un-American. They appearto think that it is the duty of the true patriot to ignore imperfections lest they throw discredit upon thesacred provisions of the Constitution. No free government can exist long unless there are aconsiderable number of men ready for unsparing examination and criticism of its weaknesses.It is uncommon to see the laws and constitution of a state openly disregarded. It is the silent andgradual attacks that the citizen should watch with jealous care. When government inspectorssupervised the elections for representatives in Congress in the reconstruction days, and counted ballotsfor state candidates as well as for members of Congress, the citizen felt the indignity and assailed itwith resentment. When, however, usurpations may be hidden behind a government so complicated bychecks and balances that the citizen cannot perceive them, the nature of the government may entirelychange and the spirit of the original constitution be lost before he awakes to the danger. Such a form ofgovernment, which hides usurpation and is a constant temptation to usurpation, we certainly have.Prior to the formation of our National Government the people imposed limitations upon the monarchor upon some centralized power of the government. Magna Charta, the Petition of Right, the Bill ofRights, all were imposed as limitations upon the power of the English king. In all modernparliamentary governments the power of the people in the representative body of the government issupreme. We alone have limited the power of our House of Representatives to such an extent as tocripple effective action on their part. A bill introduced in the House of Representatives and therepassed must receive the assent of the Senate, a body elected not by the people but by the StateLegislatures, before becoming a law. If the Senate does assent, it then goes to the President, who canreject the same giving his reasons therefor. If passed a second time by a two-thirds majority of eachHouse, the Supreme Court of the United States may still hold it unconstitutional.The chief value of a constitution in a democratic form of government, such as we are supposed to have,is to afford ready means for the expression in laws of the will of the people through responsivelegislative action. The best form of party government is found where two parties espouse conflictingprinciples and fight out the question of their value in the open. The Constitution of the United Statesdoes not give such free and effective play to public opinion in government.The checks and balances which it has created make the free expression of the convictions of the peopleby a political party almost impossible. In eleven different Congresses since the adoption of theConstitution both the President and the Senate have been of a different political faith from the Houseof Representatives. During a period of eighty-four years of our constitutional history a majority in theHouse of Representatives has not been supported by all the other branches of the Government.Between 1874 and 1896 there were but two years, the Fifty-first Congress, during which the sameparty had a majority in all the branches of the Government. 1

Smith, The Spirit of American Government, p. 227.

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Clean-cut issues between parties upon principles of government are impossible with such aConstitution, whereby the President and the Senate may represent one party, and the House ofRepresentatives another party, and where both parties, hidden behind Congressional committees, maybe acting collusively. If public opinion upon national questions is to be made effective in government,the House of Representatives, elected directly by the people, must eventually become the governingpower in this country. Its decay during the last thirty years is an omen of great danger.We hear much said in these days about the extension of the powers of the National Government byjudicial construction, but no appeal is made by the President and Mr. Root to the people or to Congressfor an amendmentconferring such extension. And why not? Such an amendment cannot be consideredby the people unless two thirds of both Houses of Congress shall deem it necessary and shall proposethe amendment to the People for their adoption, or two thirds of the several states shall call aconvention for proposing the amendment, and in each case it must be ratified by the legislatures ofthree fourths of the several states. We are fold that during the fifteen years from 1889 to 1904 435amendments to the Constitution were proposed in Congress, 2 and not one passed both Houses. Noforce less than the force of revolution can be expected to move this cumbrous machinery. ThePresident and Mr. Root well know this. They know the difficulties of bringing about an amendment,and so we are told that the results will be accomplished by the exercise of judicial discretion in theconstruction of the Constitution.Such a constitution, with so many checks and balances, with so many difficulties of amendment, is aconstant temptation to President and Secretary, to Senate and House, to usurp power. Unless theAmerican People awaken to the danger of usurpation and make one supreme struggle to modify theconditions on which the Constitution may be amended, we are in imminent danger of an entire changein our institutions through gradual encroachments upon the power of the states. Our state constitutionsare amended with ease. Many of them provide for constitutional conventions each twenty years toconsider the changes which new conditions have made necessary. But our NationalConstitutioncontinued from early in the nineteenth century for over sixty years without a single amendment, andfrom the Reconstruction Period until the present time without another.Let us now inquire how this undemocratic Constitution came into existence. Who conceived all thesechecks and balances upon the representatives of the people in the lower House, and whatconsiderations impelled the making of such a Constitution? That the people had no such fear of theirrepresentatives is shown by the fact that the first constitutions of the thirteen states in nearly every casegave almost unlimited power to the popular branch of the Legislature. In nine states the judges wereappointed by the state legislatures, either with or without the consent of the Council. The appointingpower of the governor was largely restricted in nearly all these states. In six of them this power wasgiven to the Legislature or to the Legislature and Council. The veto power was given the governor inonly two states, Massachusetts and New York. The Assembly in each state was hampered but little byexecutive veto or by the courts. Madison, speaking in the convention which framed the Constitution,said: "Experience shows a tendency in our government to throw all power into the legislative vortex.The executives of the states are little more than ciphers; the legislatures are omnipotent."England had parliamentary government with Pitt as Prime Minister at the time when our Constitutionwas framed, but the English Government of that time was by no means so popular in form as thegovernments of the thirteen states. The masses of the people were just as strong then in the sincerity of2

Smith, The Spirit of American Government, p. 47, note.

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their belief in liberty as we are to-day in the cynicism of our single-hearted faith in riches. They hadstaked everything in the world for the vindication of the principles of liberty. No people in the world atthat time would have been so quick to resent and so ready to scrutinize and so brave to fight attacksupon their liberties. They took alarm at once at a Constitution which they feared would imperil thoseliberties. The fear of kings might be a reason why they should erect barriers against the encroachmentsof the President, but why they should place limitation after limitation on the powers conferred upon theHouse of Representatives elected by their direct vote is not so easily explained. That explanation,however, is found in the opinions of the men who drafted the Constitution. They had great fear ofpopular government, and their fear would seem to have had considerable ground at that time for itsexistence.Democratic spirit of early state governmentsWe shall not appreciate why the limitations in the Constitution upon popular action were created if wedo not understand clearly the conditions of the people in the thirteen states at the time of its formation.John Fiske, in his book entitled "The Critical Period of American History," has described fully thoseconditions. The characteristic feature of the Constitution, putting limitation after limitation uponpopular action, was a direct result of the reaction which came from popular tumult and popular abusesduring that critical period.During their seven years' war the 2,500,000 people of the thirteen states had placed nearly 300,000troops in the field, and had raised $170,000,000. The army, however, had dwindled from 46,901toward the middle of the war to 13,832 in 1781, and the revenue had dwindled from $22,000,000 to$2,000,000 annually. But for the timely aid of France the Revolution could never have been successful.At the end of the war the resources of the country were so exhausted that no money was left to pay thearrears of the soldiers in the field nor the running expenses of government.The treaty between the Confederation and England in 1783, while it terminated the war, at the sametime destroyed the foreign commerce of the states. Prior to the Revolution the New England States hadbeen largely engaged in the carrying trade between the colonies and the West Indies. The building ofships and the sailing of ships was the great industry of New England. The treaty of 1783 closed theports of every English colony to New England ships. The English Navigation Act impaired verygreatly the ability of the Southern and Middle States to export their products. The result was that NewEngland and the South, without money in gold and silver, with only their continental currency, andwith their trade destroyed, were crippled in all their industries. Suffering intensely from theseconditions, a large body of the people, heavily indebted, subject to judgments and imprisonment fordebt, developed such bitter feelings as to cause the reaction shown by the framers of the Constitution.By the Articles of Confederation the central government had no power to impose taxes upon the peopleof the several states, but depended entirely upon requisitions made upon the states for their proportionof the supply necessary to meet the demands of government. New Hampshire, North Carolina, andNew Jersey refused to respond to these requisitions. New York, Pennsylvania, and Connecticut werethe only states which responded in full. Of the continental taxes assessed in 1783 only a fifth part hadbeen paid by the middle of 1785. The Government had become so helpless that it was actually forcedto make loans abroad, not only to pay the interest upon the public debt, but to pay the actual currentexpenses of government.

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The several states imposed direct taxes as they do to-day, and also laid duties upon exports andimports, each according to its own view of its local interests. Connecticut imposed duties upon goodscoming from Massachusetts and from New York, Pennsylvania upon goods coming from Delaware,and New York upon goods coming from Connecticut and New Jersey. The State of New York raisedfrom 60,000 to 80,000 by duties upon foreign imports. Connecticut consumed probably one third ofthese goods imported, consequently she paid one third of this amount of duties in enhanced prices forthe goods which she purchased from New York. Pennsylvania, Virginia, and South Carolina were eachimporting states. Madison quaintly describes the condition of the times as follows: "Some of the stateshad no convenient ports for foreign commerce and were subject to be taxed by their neighbors throughwhose ports their commerce was carried on. New Jersey placed between Philadelphia and New Yorkwas likened to a 'cask tapped at both ends,' and North Carolina between Virginia and South Carolina,to a 'patient bleeding at both arms.'"Causes of reactionary spirit of the ConstitutionThe states shared with Congress the powers of coining money, of emitting bills, and of makingpromissory notes legal tender for debts. This power left to the states was the one which brought untoldevil. With little or no gold or silver in the country, with no medium of exchange, bending under theirindebtedness, their commerce destroyed, no markets for their products, exhausted by the great burdensof the Revolutionary War, and disappointed because liberty had not brought blessings to them, thepeople in all the states but Connecticut and Delaware provided for the issue of paper money.In Rhode Island the farmers gave mortgages on their land for the loan of paper money issued by theState, and when they tendered the money to a storekeeper in payment for goods he refused to accept it.Then laws were passed in Rhode Island and in many other states requiring creditors to accept themoney in payment of debts, and, in case of refusal, permitting debtors to go before any magistrate andtender this money in payment of a debt, whereupon a certificate was given by the magistrate asevidence of payment. In North Carolina the money was used by the State to purchase tobacco, theState paying twice the value of it in order to get the people to take the money. Finally, South Carolina,Georgia, and Rhode Island were driven to pass penal statutes punishing those who would not acceptthe money in full payment. So little of currency was there in the country that the people reverted to thepractice of barter, whisky in North Carolina and tobacco in Virginia doing duty as money. Some stateseven passed laws permitting their products to be given in payment of debts at a certain price. The resultwas mobs in Rhode Island that attempted to intimidate the court in passing upon the constitutionalityof its Legal Tender Act, and an insurrection in Massachusetts which broke up courts and was finallyput down by armed troops.That this turbulence and passion naturally inspired a very grave distrust of the people in the men whoframed the Constitution is well established. More than fifty years after the formation of theConstitution the notes of Madison, giving the sentiments of the men who drafted the Constitution, werepublished. Then for the first time the world knew what these men thought of the people and why theycreated so many limitations upon the action of the House of Representatives. Governor Randolph ofVirginia said in the convention:"In tracing these evils to their sources every man has found it in the turbulence and follies ofdemocracy." George Mason of the same State said: "The injustice and oppression experienced amongus arises from democracy." Roger Sherman of Connecticut thought "that the people would never besufficiently informed to vote intelligently on all candidates that might be presented." Elbridge T. GerryFederal UsurpationElectronically published by Family Guardian Fellowship

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of Massachusetts declared that "the follies which we experience flow from the excess of democracy."Hamilton, Gouverneur Morris, and many of the other delegates made like expressions.Reading Madison's notes (the only complete statement of what occurred in the National Convention),there can be but one conclusion: that the limitations upon the popular branch of Congress were createdbecause of the deep-seated distrust of democratic government on the part of the men who framed theConstitution. They believed that a popular majority was a menace to liberty and feared the people, sothey created the Constitution with the idea of making control by the people ineffective. GovernorClinton, before the convention in New York called for the purpose of considering the adoption of theConstitution, well said: "I ever lamented the feebleness of the Confederation, for this reason, amongothers, that the experience of its weakness would one day drive the people into an adaption of aconstitution dangerous to our liberties. I know the people are too apt to vibrate from one extreme toanother." 3The conditions resulting from the control by the states of commerce, as permitted by the Articles ofConfederation, were simply intolerable. The National Assembly in 1785 requested the several states toallow the Confederation to impose duties upon imports of tea, coffee, sugar, and other like articles, toprovide for the current expenses of government. Ten states consented, but attached such conditions totheir consent as made them of no value.Constitutional ConventionFinally, at a meeting at Mount Vernon, in 1785, of commissioners from the States of Maryland andVirginia to define their respective jurisdiction, a suggestion was made that a general convention of thestates should be held to provide plans for the common control of all foreign and interstate commerce.The Legislature of Virginia thereupon sent to the Legislatures of the states an invitation to sendrepresentatives to Annapolis in 1786 to devise common commercial regulations of foreign andinterstate trade. Only the States of Virginia, Pennsylvania, New York, and Delaware responded. Withso few states present the convention at Annapolis deferred action, but through Alexander Hamiltondrafted a report to Congress. Hamilton prepared this report with careful reference to a convention of allthe states, not to amend the Articles of Confederation, but to create an entirely new government, urgingCongress to call a convention to devise "such further provisions as shall appear to them necessary torender the Constitution of the Federal Government adequate to the exigencies of the Union, and toreport to Congress such an act as, when agreed to by them and confirmed by the Legislature of everystate, would effectually provide for the same." Congress neglected to act until a culmination of evilsforced them to issue an address to the different states asking that commissioners be sent, and adoptingthe language of Hamilton in his report of the Annapolis convention.In May, 1787, fifty-five delegates, representing all the states but Rhode Island, assembled inPhiladelphia. Mr. Fiske tells us that twenty-nine of these delegates were university men, graduates ofYale, Harvard, Princeton, Columbia, William and Mary, Oxford, Glasgow, and Edinburgh. Amongthe twenty-six who were not university men were Washington and Franklin. John Adams and ThomasJefferson were in Europe. Samuel Adams, Patrick Henry, and Richard Henry Lee disapproved of theconvention, and remained at home. The convention selected George Washington for its president.

1 Elliot's Deb., vol. ii, p. 359.

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The first resolution passed by the convention is in the following words: "Resolved, That it is theopinion of this committee that a national government should be established, consisting of a supreme,legislative, executive, and judiciary." Six states, Massachusetts, Pennsylvania, Delaware, Virginia,North Carolina, and South Carolina, voted for this resolution. Connecticut voted no; New York wasdivided. It often has been claimed that the separation of these departments of government in ourConstitution was the result of the teachings of Montesquieu, who had published his "Spirit of theLaws" about thirty years before the Constitution was adopted. Montesquieu was a great admirer of theEnglish Constitution, and attributed its success to the fact that there was a division of the governmentinto executive, legislative, and judicial departments. He held this up to his readers as a model form ofgovernment, and described at great length the advantages to be derived from this separation. From timeto time, later in the debates of the convention, the writings of Montesquieu were referred to, but noreference to them was made in connection with the passage of this resolution. Certainly Montesquieuwas mistaken as to the real condition of the English Government at the time when he wrote. The menwho framed the Constitution were probably better acquainted with its actual workings than was theauthor of the "Spirit of the Laws." They well knew that Lord North, as Prime Minister during theRevolutionary War, had been controlled by George III. They appreciated that the subservientparliaments of the administration of Lord North represented the estates and the money of the peers andthe influence of the king rather than the great body of the English people, and there is much morereason to believe that they had in mind the tyranny of George III in providing for this separation ratherthan the teachings of Montesquieu.Two plans of government were presented to the convention, one known as the Virginia plan and theother as the New Jersey plan. The Virginia plan had been carefully drafted by James Madison andgiven to Governor Edmund Randolph for presentation as the leading representative of the State ofVirginia. The Virginia plan went at once to the root of the whole evil of the Confederation by creatinga new government with power to enforce its decrees upon the people of the states. In the convention inNew York for the adoption of the Constitution, Lansing said: "I know not that history furnishes anexample of a Federated Republic coercing the states composing it by the mild influence of lawsoperating on the individuals of those states." James Madison states that Noah Webster, in the winter of1784-85, first proposed "A new system of government which should act, not on the states, but directlyon individuals, and vest in Congress full power to carry its laws into effect." 4 The New Jersey planproposed to leave the states instead of the people of the states as the basis of government, thuspermitting the very causes of the existing evils to continue.The great contest before the convention was over the questions of the control of commerce and of theinstitution of slavery in the Southern States. New Hampshire, Massachusetts, and Rhode Island hadunited in passing in the Legislatures of each of those states what were known as Navigation Acts,providing that no goods should be shipped in English vessels, with other provisions tending to destroyEnglish commerce in our ports. The ships of the New England States transported most of the exportedproducts of the South. So exceedingly fertile and profitable were the lands of South Carolina that, inthe single port of Charleston, a hundred large ships were loaded yearly with rice and indigo. Theannual exports of tobacco from Virginia alone were 700,000 or 800,000 pounds.The imposition of duties upon foreign commerce being left with Congress, the South feared that NewEngland and the Middle States would unite and control commerce against her interests, imposingheavy freight charges upon her exports and obstructing the importation of goods to her ports by4

1 Elliot's Deb., vol. v, p. 118.

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protective tariffs. Massachusetts was the only state in the nation at that time which did not own slaves,and though slaves were held in all the other Northern States the system of slavery was rapidly dyingout in the North. The Massachusetts delegates, as well as the delegates from Virginia, favoredlimitations upon the importation of slaves. The result was that a committee consisting of one delegatefrom each state was appointed to adjust the questions of slavery and the control of foreign commerce.The Southern men insisted that no Navigation Act or act controlling commerce should be passedwithout a majority vote of two thirds of the members of each branch of the Congress. The Northernmen, on the other hand, urged that limitations should be put upon the existence of slavery, and that theevil should be gradually destroyed. The result was a compromise permitting the importation of slavesuntil the year 1808, and consenting that commerce should be controlled by Congress upon a meremajority vote. This compromise was baleful seed for the new nation, producing two of the greatestevils which this country has ever known. We destroyed slavery by the sacrifice of the blood of amillion men and of billions of treasure, but we continue to allow Congress, by a mere majority vote, topass navigation and high tariff acts that obstruct commerce for the profit of manufacturing interests,and thus we prolong an all-pervasive source of corruption. "By an inevitable chain of causes andeffects Providence punishes national sins with national calamities."When James Wilson and Charles Pinckney suggested that the executive power should be intrusted inthe hands of one man, it is said that a profound stillness fell upon the convention and no one spoke forseveral minutes, until Washington from the chair asked if he should put the question. Sherman andother members of the convention spoke of the executive as "nothing more than an institution forcarrying the will of the legislature into effect." After it had been determined that the executive powershould be intrusted to one man, the question of the time of office was discussed and terms of one, two,three, four, ten, and fifteen years were suggested, but Rufus King of Massachusetts remarked: "Bettercall it twenty, it is the average reign of princes."After four or five weeks of constant sittings of the convention grave doubt existed as to whether anyagreement could be reached. Dr. Franklin, who was not conspicuous for his religious fervor, seeing thedanger and lamenting it, arose and said: "Mr. President: The progress we have made after four or fiveweeks' close attendance and continual reasoning with each other our different sentiments on almostevery question, several of the last producing as many 'noes ' as 'ayes' is methinks a melancholyproof of the imperfection of the human understanding in this situation of this Assembly groping, asit were, in the dark to find political truth, scarcely able to distinguish it when presented to us, how hasit happened, sir, that we have not hitherto once thought of applying to the Father of Lights to illuminateour understandings?" He then moved that each session of the convention be opened with prayer.Hamilton and several of the other members suggested that it was too late a day for this innovation, andafter several unsuccessful attempts to adjourn the convention without acting upon the proposition, itwas at length carried. 5Madison's notes show that again and again expressions were made by members of the convention tothe effect that such language must be used in the Constitution as would not arouse apprehension on thepart of the people that their liberties were being affected lest they reject it. A single instance of thespirit of many of the men of the convention is shown by a letter written by Gouverneur Morris inJefferson's administration. Our country had just secured the great Louisiana Territory from France by atreaty which provided that the territory should be divided up into states and eventually made part of theUnion. While the right to acquire territory by treaty was conceded, Jefferson believed that it could not5

1 Elliot's Deb., vol. v, pp. 253, 254.

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be divided into states and received into the Union without an amendment to the Constitution, as hisletters written at the time to Breckinridge, Gallatin, Dunbar, and Nicholas clearly establish. The finaldraft of the Constitution was made by Gouverneur Morris, and he, more than any other member of theconvention, was responsible for the wording of each section. Article 4, Section 3, provides: "TheCongress shall have power to dispose of and make all needful rules and regulations respecting theterritory or other property belonging to the United States; nothing in this Constitution shall be soconstrued as to prejudice any claim of the United States or of any particular State."Gouverneur Morris, writing to his friend Henry Livingston with reference to the right of the UnitedStates to purchase this territory and take it into the Union as states, said: "I always thought that whenwe would acquire Canada and Louisiana it would be proper to govern them as provinces and allowthem no voice in our councils. In wording the third section of the fourth article I went as far ascircumstances would permit to establish the exclusion. Candor obliges me to add my belief that had itbeen more pointedly expressed, a strong opposition would have been made." 6 The leading men of thestate conventions who adopted the Constitution well knew that a democratic republic could not governsubject races, and that every democracy which had attempted empire had met with disaster. YetGouverneur Morris intended, according to his own admission, to draft this section in such a way as notto disclose the intent to hold the people of newly acquired territories as subjects, well knowing that ifthe intent was understood the Constitution would be defeated.State conventions for adoption of the ConstitutionThe Constitution was now sent by Congress to the several states for their consideration and adoption,and with its submission arose one of the most vigorous struggles upon questions of political principleswhich our country has ever seen. The columns of newspapers were filled with articles by writers,ardent for its adoption or its rejection, who concealed their personalities under such classic andsonorous names as Cassius, Agrippa, Cato, Csar, or Aristides. The struggle was carried on mostvigorously in Virginia, Massachusetts, and New York, the Constitution being passed in each state onlyafter long discussion and by very small majorities. Those engaged in commerce and residing in thecities were uniformly favorable to the Constitution, while those settled in the remoter parts of the statesand engaged in agriculture were quite as uniformly opposed to it. In New York, Albany and TryonCounties were arrayed against the southern part of the State. In Massachusetts, Boston and thesurrounding country was opposed by the central and western part of the State. The Constitution nevercould have been adopted had it not been for the desperate conditions of the different states at that time.In Virginia, Patrick Henry, George Mason, Benjamin Harrison and John Tyler (the fathers of the twofuture presidents) and James Monroe each opposed its adoption.Powers conferred upon CongressArticle 1, Section 1, of the Constitution 7 provides that "All legislative powers herein granted shall bevested in a Congress of the United States which shall consist of the Senate and House ofRepresentatives." The powers referred to as granted to Congress are limited by the words "hereingranted," and they are found enumerated in Section 8 of Article 1. No power is conferred uponCongress except those specified in the seventeen subdivisions of that section. The eighteenthsubdivision, providing that Congress shall have power "to make all laws which shall be necessary and67

1 Columbia Law Review, March, 1905, p. 195.

A copy of the Constitution may be found in the Appendix.

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proper for carrying into execution the foregoing powers," is the provision in the Constitution overwhich much of the litigation as to the constitutionality of acts of Congress has arisen. This may seemstrange to the reader, because that provision is no more than would be implied from the granting of anexpress power, since every power carries with it by implication the right to exercise all necessary andproper powers for its execution. These words would therefore seem to be unnecessary. Yet under thislast clause have arisen the questions of the constitutionality of the Bank of the United States; of theLegal Tender Acts; of the vast works of internal improvement; of the power to use billions of dollars ofthe people's money to foster agriculture and irrigate arid lands; of the power to lay embargoes onshipping, and of enacting protective tariffs and navigation acts.In Section 9 of Article 1 are the provisions prohibiting acts on the part of Congress, while in Section 10of Article 1 are gathered the prohibitions upon the actions of the different states. In this connection it ismost important to observe that the grants of power found in Section 8 of Article 1 on the part of thestates to the National Government are not exclusive in their nature except in those cases where thestate is forbidden in Section 10 from doing the same act. Thus the state is forbidden from entering intoany treaty, alliance, or confederation, from coining money, emitting bills of credit, making anythingbut gold or silver coin a payment of debts, passing any bill of attainder, ex post facto law, or impairingthe obligation of contracts. Until Congress has exercised these powers of Section 8, the state cancontinue to exercise such of them as are not thus prohibited to the states and are not national in theirnature. 8 So for a hundred years after the passage of the Constitution the state governments imposedquarantine against other states, and that power recently has been absorbed by the NationalGovernment. Each state may pass bankruptcy laws which exist until the National Government hasprovided for a system of uniform laws on the subject of bankruptcy throughout the United States. Eachstate may provide for the punishment of counterfeiting- the securities and current coin of the UnitedStates, and each state may regulate foreign and interstate commerce upon subjects which are of such anature that Congressional legislation is not necessary to reach them, such as inspection of pilotage, portregulations, and improvements of harbors. 9 In all the cases referred to above, and others notenumerated, the state has what is called "concurrent power " to execute powers which were delegatedto the National Government, until Congress has passed a statute controlling the matter.No inherent powers in CongressThere is no such thing as an inherent right in Congress to exercise any power not specified in theseventeen subdivisions of Article 1, Section 8. 10 When a power is implied by the courts it must beimplied as necessary and proper for carrying into execution an express power granted. "The powersaffecting the internal affairs of the states not granted to the United States by the Constitution norprohibited by it to the states are reserved to the states respectively, and all powers of a nationalcharacter which are not delegated to the National Government by the Constitution are reserved to thepeople of the United States." 11 So all powers not affecting the internal affairs of the states, and at thesame time being national in their nature, but not delegated by the people to the National Government,

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are reserved to the people of the United States and they, if they desire, can confer them, by anamendment to the Constitution, upon the United States. 12Executive and judicial powersTurning now to the executive power in Article 2, Section 1, and to the judicial power, Article 3,Section 1, we find that neither executive power nor judicial power are limited to powers "hereingranted." Section 1 of Article 2 provides that "The executive power shall be vested in a President of theUnited States of America." Section 1 of Article 3 provides that "The judicial power of the UnitedStates shall be vested in one Supreme Court." So that notwithstanding each of these general grants ofpower are followed by an enumeration of special powers granted, the general grant of power we aretold to our surprise by the United States Supreme Court is not limited by the enumeration. 13Amendments to the ConstitutionThe first eight amendments to the Constitution enumerate popular rights, the origin of which can betraced to some event or series of events in English history where the right was won as the result ofyears of struggle. The Constitution of the United States creates none of these rights. Every one of theseenumerated safeguards exist under the common law or in the Constitution of each state, and the onlyresult of their incorporation by amendment in the Constitution of the United States is as a restraintupon the action of the United States Government. 14Next it is important to observe that the ninth and tenth amendments to the Constitution preserve to thestates all powers not delegated to the United States by the Constitution, nor prohibited by it to thestates, and that the enumeration of certain rights delegated to the National Government shall not beconstrued to deny or disparage others retained by the people. These amendments, say the United StatesSupreme Court in a recent case, were "adopted with prescience " under "fear that the NationalGovernment might, under the pressure of a supposed general welfare, attempt to exercise powerswhich had not been granted." 15 This august court long ago declared "that the maintenance of the stategovernments are as much within the design and care of the Constitution as the preservation of theUnion and the maintenance of the National Government. The Constitution, in all its provisions, looksto an indestructible Union composed of indestructible states." 16The thirteenth amendment, besides abolishing forever slavery and involuntary servitude, gives powerto Congress to protect all persons within the jurisdiction of the United States from being in any waysubjected to such slavery or involuntary servitude, except as punishment for crime.The object of the fourteenth amendment to the Constitution was to secure the negroes fromdiscrimination on the part of the state governments. Before its adoption a Civil Rights Act had beenpassed seeking to secure that end, but had been declared unconstitutional. The fourteenth amendmentwas then framed, passed by a two-thirds majority through both Houses of Congress, and approved bythree fourths of the States. It recognized, if it did not create, a national citizenship as contradistinguished from that of the States. It provided that no state should make or enforce any law which12

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should abridge the privileges and immunities of citizens of the United States; and it was contendedlater with great vigor that these words referred to the first eight amendments of the Constitution, andthus secured to the citizens of every state in the Union all of the privileges and immunities set forth indetail in those amendments.If this claim had been sustained it would have made the United States Supreme Court a guardian of thepersonal rights of the citizen of every state. The citizen's rights would have been measured, not by theguarantees of personal liberty assured by his own state constitution, but by the National Government'sstandard as set forth in the first eight amendments; and the United States Supreme Court would havebeen called upon in thousands of cases to enforce upon the states the observance of these amendments.This contention, however, was not sustained. 17 1 The construction put by the United States SupremeCourt upon the words, "nor shall any State deprive any person of life, liberty, or property without dueprocess of law," in the fourteenth amendment, is a narrow one, securing to the citizen of the state fewrights. This provision has been construed to mean simply that liberty and property has not been takenwithout due process of law when it is taken in the course of the regular administration of the law inestablished state tribunals. If the regular administration of the law in the established tribunals of thestates authorize a particular act, the United States Court will not interfere. 18 1The fifteenth amendment relates to the right of a citizen to vote. It does not confer the right of suffrageon anyone. It merely invests the authorities of the United States with the constitutional power ofprotecting citizens in their enjoyment of the elective franchise from discrimination on account of race,color, or previous condition of servitude. 19So the reader will see that although the United States Government, within the last four or five years,has held the attention of the citizen because it promises to rectify great abuses, still his StateGovernment controls him exclusively as to taxes, schools, trades, inheritance, marriage, divorce,courts, police, local boards, and in a hundred other different ways, and that the proper place to rectifyevils is at home, where he sees and appreciates them and can apply a direct remedy.Sources of the ConstitutionThe sources from which the men who framed the Constitution drew their plan and material has everbeen a subject of interest. Mr. Gladstone spoke of the Constitution as "the most wonderful work everstruck off at a given time by the brain and purpose of man." The trouble with this statement is that theConstitution was not struck off at a given time by the brain and purpose of man, but was the result of aprogressive growth reaching back to the time of the Anglo-Saxon invasion of England. The AngloSaxons had developed in Germany the mark and the hundred and the tribe which present in detail thegradations of local independence and central authority. In England the mark became the town. Thefederation of Anglo-Saxon townships constituted the Anglo-Saxon kingdom or what later became theshire. The shire possessed a general assembly made up of all the freeholders together with therepresentative element comprising, like the hundred court, the head men and four chosen men fromeach town of the shire. The shire assembly elected its own chief magistrate, the earldorman, and itssheriff. The judicial executive exercised an authority over the general affairs of the whole shire quitesimilar to that exercised by our National Government over the several states. The Norman Conquest17

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impaired these institutions, but their remembrance, and to some extent their existence, continued, andthe Pilgrims brought them to this country.The central government of each of the New England colonies was based partly upon the people andpartly upon the towns as integral elements of the colony. The governor, deputy governor, andassistants, who constituted the upper House in the Colonial Assembly, were chosen in a generalelection by the whole body of freemen when not appointed by the Crown, while the deputies, whoconstituted the lower House, were chosen by an equal representation from the several towns. Eachcitizen was responsible to the central government of the colony and to the government of his owntown. This form of government was taken into Connecticut by the emigrants from the MassachusettsBay Colony, and in Connecticut we find the same disposition of general and special powers betweenthe central government of the colonies and the governments of the constituent communities. Thisrelationship was most instrumental in bringing about the peculiar form of our National Government,with its representation by states in the United States Senate and its representation of the people in theHouse of Representatives. The government of Rhode Island was the same as in Connecticut; and wheneach of these charter colonies at the time of the Revolution desired to change their form of governmentthey did it by simply declaring that the people had ascended the throne of the deposed king, and thiswas all that was deemed necessary to change the charter of each into a constitution. Connecticutcontinued under her old charter as a constitution until 1818, and Rhode Island until 1842.Local self-government in New England and paternalism in CanadaOur ancestors sought a new country, and they found not only a new country but a new condition ofmind.Here, face to face with Nature, they were taught to rely mainly on themselves, and manhood became afact of prime importance. The neglect of England became their opportunity. Nowhere had local selfgovernment reached so high a degree of efficiency as in New England. They believed it to be allimportant that people should manage their own affairs instead of having them managed by a strongcentral government. How different their attitude toward government than was that of their Canadianneighbors. The more the citizen obeys the inclination to rely on help from others, the community or thestate, the less is his force of initiative developed, the less is he inclined to exert himself, not alone withthe idea of making a living but of attaining the highest development. Never was there a more strikingcontrast than between the government of the people of New England and the French Canadians ofQuebec.Twelve years before the Pilgrims landed at Plymouth Quebec was founded, and this was only one yearafter the first permanent settlement in America at Jamestown in Virginia. The colony grew anddeveloped under the benevolent government of Louis XIV. The omnipresent, inquisitorial nose of theFrench Intendant followed the peasant into every detail of his life. The price of wheat and the price ofabout every necessary of life were regulated by imperial edicts. The question of race suicide was everone of great importance. Girls for the colonies were taken from the houses of refuge in Paris and Lyonsand sent by shiploads to Quebec. There they were provided husbands with little delay. All single menarriving in the country were obliged to marry within a fortnight after the landing of the prospectivebrides, and the Intendant Talon forbade them while unmarried to fish, hunt, or go into the woods with

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the Indians under any pretense whatever. Upon their marriage the governor general gave the newlymarried couple an ox, or a cow, or a pair of swine, or a pair of fowls, or a few crowns of money. 20 1Large families were greatly encouraged by the Government. The king, in council, passed a decree thatall the heads of families who should have living children to the number of ten born in lawful wedlockshould be paid a pension of 300 livres, and those who should have twelve children a pension of 400livres. 21 The king devoted 40,000 livres for the purpose of encouraging the art of shipbuilding, and theIntendant Talon built a ship to show the people how they were built, and to lead them to imitation.Louis XIV trusted the intendant to issue an ordinance having the force of a law whenever he thoughtnecessary and, in the words of his commission, "to order everything as he shall see just and proper."223 The in-tendants, under such directions, controlled public meetings, restrained the people fromspeaking their minds, regulated them in all the details of their life, destroyed individual initiative, andstunted and exhausted the energy of the people. The New Englander learned how to govern himselfbecause he lived in a society in which each man worked as his own master, where he depended on hisindividual action for promotion, and where he controlled the government in which he lived. These littledemocracies of New England prided themselves in being sufficient unto themselves, and out of themcame the liberties of the states and the greatness of our country.Most of the provisions of the Constitution can be found in the first constitutions of the states.23

The provision for vesting the legislative power in two chambers finds its counterpart in theconstitution of six different states. The term of service of the members of the Maryland Senatesuggested the six years' term in the United States Senate; and the election of the Maryland senators wasthe model of the provision for electing the President through electors named by the legislatures of thedifferent states. The provision for the impeachment of the President of the United States or of anyofficial is almost identically the same as that existing in the Constitution of 1777 of the State of NewYork. The provision associating the Senate with the President in the exercise of the appointing poweris very similar to a system pursued under the New York Constitution, which provided that the governorshould make his appointments "by and with the consent of a select committee of the Senate." Theprovision requiring the consent of the President before an act of Congress could become a law andpermitting him to veto the same is copied almost word for word from the Constitution ofMassachusetts.In every one of the states, with the exception of New York and North Carolina, the upper House wasdenied the right of originating money bills, and in Maryland, Virginia, South Carolina, and New Jerseythe Senate was denied the right of even amending such bills. The qualification for senators in ten stateswhich had bicameral legislatures was on a distinct basis of taxable property, and a higher qualificationwas required for electors and members of the Senate in several of the states. Gouverneur Morris andother members of the Constitutional Convention contended that the United States Senate should beregarded as representative of property; while the House of Representatives, immediately elected by thepeople, should be regarded as representative of the people. From one third to one half of the membersof the Federal Convention had been members of the conventions which had framed the several stateconstitutions. It certainly is not a violent presumption when we find provisions in the state

20

The Old Regime, Parkman, 221, 226.

The Old Regime, Parkman, 227.22The Old Regime, Parkman, 275.23Am. Academy of Political and Social Science, pamphlet No. 9.21

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constitutions similar to those in the National Constitution, to assume that the model was found in thestate provision.George Mason, in the Virginia Convention, in discussing the proposed Constitution, said: "Nowsuppose oppression should arise under this government, and any writer should dare to stand forth andexpose to the community at large the abuses of those powers, could not Congress, under the idea ofproviding for the general welfare and under their own construction, say that this was destroying thegeneral peace, encouraging sedition, and poisoning the minds of the people? And could they not, inorder to provide against this, lay a dangerous restriction on the press? Might they not thus destroy thetrial by jury?" Just what Mr. Mason apprehended actually occurred. Hardly had Washington left thePresidency when, in July, 1798, a statute was passed by Congress making it a crime to write, print,utter, or publish or cause to be written, printed, uttered, or published, or to knowingly assist inpublishing any false, scandalous, and malicious writing against the Government of the United Stateswith intent to defame the said Government, or either House of the said Congress, or the President, or tobring them into contempt. 24 The statute made this an offense, subject to prosecution in the nationalcourts, which, under the reserved powers of the states, could be cognizable only in the state courts.Matthew Lyon, of Vermont, was convicted under this statute and sentenced to four months'imprisonment in jail, and a fine of $1,000, because he declared that the President's Message toCongress "was a bullying speech which the Senate in a stupid answer had echoed with more servilitythan ever George III experienced from either House of Parliament."Alien and Sedition LawsAt the same time a statute was passed, called the Alien Law, which declared "that it shall be lawful forthe President to order all such aliens as he shall judge dangerous to the peace and safety of the UnitedStates, or shall have reasonable ground to suspect are concerned in any treasonable or secretmachinations against the government, to depart," etc. The President, by this statute, was made judge ofwhat was dangerous to the peace and safety of the United States. He was permitted to determine whatwas a reasonable ground to suspect a man of secret machinations and, having determined as judge thisjudicial question, he was permitted to send the man out of the country. Thomas Jefferson, writing toAbigail Adams, wife of John Adams, years after these acts were passed, said of these alien and seditionlaws that he considered them "unconstitutional, and a nullity as absolute and palpable as if Congresshad ordered us to fall down and worship a graven image." The result of these acts was that the oldFederal Party was swept out of power, and for forty years Jefferson and his successors in thePresidency carried on the government.

24

It is interesting to observe that a statute almost identical with the sedition law was passed a few years ago in thePhilippines. The statute reads:''Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against theGovernment of the United States or the insular government of the Philippine Islands, or who shall print, write, publish,utter, or make any statement or speech or do any act which may tend to disturb or obstruct any lawful officer in executinghis office, or which may tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or inciterebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities or to disturb the peace ofthe community, the safety and order of the government, or who shall knowingly conceal such evil practices, shall bepunished by a fine not exceeding $2,000 or by imprisonment not exceeding two years, or both, at the discretion of thecourts."

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Veneration for the Constitution

The generation that framed the Constitution looked upon the document as most imperfect, but theyadopted it after a most bitter experience under the Confederation. Having adopted it, like goodAmericans, they set out to make the Constitution popular, and they praised it far beyond its merits. Theresult was so complete a canonization of our Constitution as to form an obstacle to its amendment. Themen who framed it were men of the greatest constructive statesmanship which our country has everproduced, and the Constitution which they prepared was indeed a blessing to the people during theeighteenth century, perhaps well along into the nineteenth century.In those days the people were much more jealous of power than now, and more vigilant in examiningthe actions of their public servants. George Mason, in giving his reasons for not signing theConstitution, said:"This government will commence in a moderate aristocracy. It is at present impossible to see whetherit will, in its operation, produce a monarchy or a corrupt, oppressive aristocracy. It will probablyvibrate some years between the two and then terminate in the one or the other." It will never terminatein a monarchy in name. The forms of a democratic government charm the people long after the spiritof democracy has fled. Politicians are wise enough to appreciate this fact, and to continue withscrupulous care the form of a democracy. If the people can be aroused to change the conditions ofamendment so that the change in our civil life will be accompanied by changes in our fundamental law,the republic will live on in fact as well as in form for a long period of time. But if our originalConstitution is left unamended, if the limitations which it imposes upon popular government arecontinued to hide the corruption which exists, and the party in power continues irresponsible to thepopular will, the days of real liberty to the people are numbered. If consolidation, centralization, andusurpation in the National Government continue, long before we reach the point where Washingtonrules the United States, as Paris rules France, the spirit of liberty will have ceased.We will now see to what extent the Constitution has changed with time, to what extent it has bent tothe force of circumstances, to what extent the Executive and Congress and the courts have set it asideto meet the supposed necessities of great crises.

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II USURPATION IN THE CIVIL WAR AND RECONSTRUCTION

PERIOD"When dangers thicken, the only device may be the Roman one of a temporary dictatorship. Somethinglike this happened in the War of Secession, for the powers then conferred upon President Lincoln, orexercised without Congressional censure by him, were almost as much in excess of those enjoyedunder the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul."JAMES BRYCE."In the plenitude of their powers as absolute rulers the generals" (of the reconstruction period) "wereabove the constituent assemblies of the inchoate new states as distinctly as they were above thegovernmental organs of the expiring old states."PROFESSOR DUNNING.Those pitiless years of reconstruction! worse than the calamities of war were the 'desolating furies ofpeace.'"BISHOP GALLOWAY.

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CHAPTER II USURPATION IN THE CIVIL WAR AND RECONSTRUCTION

PERIODOrigin of existing usurpation found in this periodTHERE is, in the mind of the younger generation which has come up since the war, a tradition of anattack on the Union by men who believed in state rights. By reason thereof state rights, in their mind,has a bad name. The usurpation of power by the Government in our day is occurring in times of peaceand so secretly and so all-pervasively that men have become accustomed to it, and are not moved asthey were by such violent wrestings of liberty from large bodies of people as occurred in many statesduring Reconstruction days. The period of the Civil War and Reconstruction, better than any other inour history, shows these violent usurpations of power. During the war, necessity took the place of theConstitution, and we see the written guarantees of liberty grow dim in the smoke of battle. During theReconstruction period, however, with no necessity to justify their action. Congress established adespotism in nearly every one of the Southern States, which, when well known and fully understood bythe younger generation of to-day, will be condemned by them for its cruel injustice.There is no statute of limitations in the law of cause and effect, and the usurpations of the war andReconstruction days are the fundamental causes of the existing conditions to-day. Not only the clear,unquestioned acts of usurpation of that period deserve examination, but the origin of the greatcentralizing forces coming out of protective tariffs and national banks and a paper currency and otherlegacies of like kind from the Civil War are worthy of the reader's attention. It is not a pleasant duty torecite the acts that make the darkest picture in all American history, and nothing short of avertingusurpation on the part of our National Government to-day can justify such a recital.Suspension of the writ of habeas corpus by President Lincoln and imprisonment of thousands ofNorthern menEarly in the Civil War President Lincoln by proclamation authorized General Scott to suspend the writof habeas corpus at any point on the military line between Philadelphia and Washington. The portionof the country covered by the proclamation was not in insurrection, and the publishing of theproclamation left hundreds of thousands of people in a region where there was no war without anyprotection from this writ. There was much doubt as to whether the President, under the circumstances,had a right to suspend its operation. Story and other writers upon the Constitution had maintained thatCongress alone had the right to suspend the writ and the United States Supreme Court had indicated itsopinion to that effect. 25 In 1807, when an act was proposed suspending the writ in connection with theBurr conspiracy, there was no intimation in Congress or the country that the power was in thePresident. 26Without warrant and without any sworn statement, but merely upon an order of the Secretary of Stateor the Secretary of War, hundreds of men were arrested for the expression of words construed astending to inflame party spirit or as sympathetic with the Southern cause, and hurried away to FortsLafayette, Warren, McHenry, Delaware, Mifflin, Old Capitol Prison, penitentiaries and military campsin the different parts of the country. So many arrests were being made that an attempt was made to testthe validity of the President's action. In 1861 one John Merryman was held in detention at Fort2526

Bollman v. Swartout, 4 Cranch, 75.

Dunning, Essays on the Civil War and Reconstruction, p. 41.

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McHenry by General George Cadwalader, under one of these orders of Secretary Seward, on a chargeof treason. An application was made to Judge Taney, Chief Justice of the United States SupremeCourt, for a writ of habeas corpus requiring the production of the prisoner before the judge on theground that he was wrongfully detained. Chief Justice Taney signed the writ commanding GeneralCadwalader to produce Merryman before him and show cause for his detention. When the marshal ofthe United States Court presented the writ to General Cadwalader at the fort, Cadwalader refused toobey it, and when Taney issued a body attachment against him the general shut the marshal out of thefort. Thereupon the chief justice wrote an opinion as to the law, which was sent to the President,holding that the prisoner was entitled to his liberty and should be discharged and that Congress alonehad the right to suspend the writ of habeas corpus. Lincoln ignored this, but later, in a message toCongress, asserted his right to suspend the writ of habeas corpus without limitation or interference.On September 24, 1862, the President issued a proclamation ordering that all persons discouragingvoluntary enlistments, resisting military drafts, guilty of any disloyal practices, or of offering aid andcomfort to the rebels, should be subject to martial law and liable to trial by a military commission, andthat the writ of habeas corpus should be suspended in respect to all such persons arrested or held bymilitary authority. It is to be observed that this last order of the President applied to all parts of theNorth where there was no insurrection, yet it caused the arrest of men without warrant, detained themwithout a hearing, and convicted them of treason and murder by a court-martial without a jury andwithout observing a single one of the guarantees in the Bill of Rights of the Constitution.The writ of habeas corpus was secured to English people by the Great Charter which, Mr. Hallam tellsus, was sent to all the sheriffs of England, was kept posted in each cathedral and church, and publiclyread twice a year, accompanied by solemn sentences of excommunication against all who shouldinfringe it, and provided that "any judgments contrary to these provisions should be invalid and 'holdenfor naught.'" This charter, made sacred by these sanctions and handed down for five hundred years bythe English people, was deliberately disregarded. Thousands of men, without any evidence whatever oftreasonable words on their part, were dragged from their homes to the different fortresses of thegovernment upon a mere telegram from Washington to a United States marshal or even a police officerof a state. The newsboys of the street were arrested for the offense of selling newspapers which somemilitary commander disapproved. Old men of seventy were dragged from their beds at midnight andhurried to prison by squads of soldiers. Many loyal men of the North were shocked by these brutalarrests, and all classes of men rose up in protest against such usurpation of power. 27 Even JohnSherman wrote to his brother of "a wanton and unnecessary use of power to arrest without trial."There lies before me as I write, a book under the title of "The American Bastile," written by one JohnA. Marshall, bearing date of August, 1869, in which he describes the circumstances of the arrest ofseventy citizens imprisoned in these fortresses from all of the Northern States except New Hampshire,Rhode Island, and Wisconsin. Among them were foreign ministers, United States senators, members ofCongress, members of state legislatures, judges, lawyers, ministers, doctors, farmers, editors,merchants, and men from all the other walks of life. The details connected with the arrests of thesemen, as described by him, are as terrible as those accompanying the state arrests in Russia today, andone draws back from his vivid descriptions with doubt lest perhaps Mr. Marshall's experiences causedhim to exaggerate the conditions.

27

Peck, Twenty Years of the Republic, p. 114.

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But we are not dependent upon his statements for the facts. A few years ago the United StatesGovernment published the records of these different fortresses showing these arrests and the names ofmany of the prisoners, the time when they were brought to the place of imprisonment, the recordsmade by the keepers of the fortresses, and the correspondence between the relatives and SecretarySeward. 28 These records, by the Government's own statement, show that hundreds of simple-mindedmen living in country villages in different parts of the United States had unwittingly spoken a wordnow and then which political adversaries had construed as evidence of treasonable intent. Informationwas given to the War Department or to the Department of State, and the matter was laid before someUnited States marshal or police officer, for all police officers of any state or town or district wereauthorized to arrest and imprison. These published prison records have a most suspicious appearance.Descriptions are given of many of the men, but not their names. Even their residence in many cases isnot disclosed. Nothing is said of the nature of their offenses. There, far away from their homes, theywere imprisoned by the government for months, until the influence of their Congressman or of otherpowerful friends secured their release. The practices of Russia to-day of casting men into solitarydungeons and keeping them for months without trial, and of finally trying them at night by drumheadcourt-martials and condemning them without any of the safeguards of English law, is merely arepetition in almost every feature of the action of our National Government toward its citizens in theCivil War.Writ of habeas corpus suspended by national statute which was declared unconstitutionalSuch a storm of indignation arose from the people in every part of the North at these arrests that onMarch 3, 1863, Congress authorized the President during the Rebellion to suspend the privileges of thewrit of habeas corpus in any case throughout the United States or any part thereof. This authorizationprovided for the discharge of any person held in duress, upon the failure of the Federal Jury sitting inthe district where the imprisonment occurred to indict at its next session after the arrest. To secureaction on the part of the grand juries and give them opportunity to investigate the cases, it wasprovided that the officials having charge of the prisoners should present lists to the court in eachjudicial district of the United States. In case of failure to indict them it was provided that they bereleased. But few indictments were ever obtained, the arrests proving unwarrantable in nearly all of thecases.In connection with the act of March 3, 1863, an act of indemnity making the prior illegal acts of thePresident legal, and relieving him from all liability, was passed by Congress. It also provided that forevery arrest caused by him in the future he should be free from legal liability. The militarycommissions with authority to try the people arrested were continued. The same act provided that incase an action was brought in any state court against an officer acting under an order of the Presidentor his secretaries, to recover damages for an arrest or false imprisonment, the officer thus sued shouldhave the right to apply to the United States Circuit Court in the same district in which the action wasbrought, and said court, by an order or writ, could remove the case to the United States Circuit Court tobe tried there as if originally commenced therein. The United States Supreme Court, however, declaredthis law unconstitutional. 29On September 15, 1863, Mr. Lincoln proclaimed a general suspension of the writ of habeas corpus,limiting it to persons held as prisoners of war, spies, or aiders or abettors of the enemy. The words2829

War of Rebellion House Documents, vol. lxvii.

The Justices v. Murray, 76 U. S., 274.

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"aiders or abettors " were defined by him as follows: "He is to be an enemy who seeks to exalt themotives, character, and capacity of armed traitors; to magnify their resources, etc. He who overratesthe success of our adversaries or underrates our own, and he who seeks false causes of complaintagainst our government, or inflames party spirit among ourselves and gives to the enemy that moralsupport which is more valuable to them than regiments of soldiers or millions of dollars." United Statesdeputy marshals and police officers continued to determine on their own judgment whether the citizensoverrated the successes of the South or underrated the successes of the North. They continued todetermine the "false causes of complaint" against the officers of our government, and hundreds moremen were hurried to prison.Finally, after the war had ended, and thousands of people had been arrested who lived far removedfrom the seat of war, the following case reached the United States Supreme Court, which determinedthat the Government had no right to arrest men in the North without warrant and to try them beforemilitary commissions. On August 13, 1864, Lambdin P. Milligan, a lawyer residing at Huntington,Indiana, delivered a political speech at a large meeting at Fort Wayne, Indiana. The speech criticisedthe National Government, and particularly Governor Morton of Indiana, who at that time was acandidate for reflection. On October 5, 1864, Milligan was arrested and taken to Indianapolis beforeBrevet Major General Hovey, military commandant of the district of Indiana. On the 21st of thatmonth he was placed on trial before a military commission, being charged with conspiracy against theGovernment of the United States, offering aid and comfort to rebels, and of disloyal practices. He wasfound guilty and sentenced to death. He contended that the military commission had no authority to tryhim or condemn him, and thereafter petitioned a United States Court judge for a writ of habeas corpus.Upon denial, an appeal was taken to the Circuit Court, which, being divided upon the question of hisright to the writ, certified the matter to the United States Supreme Court.In December, 1866, the highest court of the nation, for the first time, had an opportunity ofdetermining the right of the United States Government to make these arrests and try the personsarrested under military commissions in portions of the United States removed from the seat of war.Justice David Davis wrote the opinion on behalf of the court, holding that the military commission hadno jurisdiction to convict Milligan, and said:"It follows from what has been said on this subject that there are occasions when martial rule can beproperly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossibleto administer criminal justice according to law, then, on the theater of active military operations, wherewar really prevails, it is necessary to furnish a substitute for the civil authority thus overthrown, topreserve the safety of the army and society; and as no power is left but the military, it is allowed togovern by martial rule until the laws again have their free course. As necessity creates the rule, so itlimits its duration; for, if this government is continued after the courts are reinstated, it is a greatusurpation of power. Martial rule can never exist where the courts we open, and in the proper andunobstructed exercise of their jurisdiction, it is also confined to the locality of actual war." 30There was talk among the radical men of impeaching the judges, and John A. Bingham, a member ofthe House of Representatives, and a bitter partisan, said:"Let us sweep away at once every appellate jurisdiction in all cases, if the court by virtue of its originaljurisdiction usurps the power to decide political cases and defy a free people's will." Thaddeus Stevens,30

Bradford, The Lessons of Popular Government, vol. II, p. 390, note.

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referring to the same case, said in the House of Representatives, "That decision, although in terms andpurposes not as infamous as the Dred Scott decision, is yet far more dangerous in its operation uponthe lives and liberties of the loyal men of this country."Lincolns comments upon his acts of usurpationThere is a story, one of the many attributed to Mr. Lincoln, in which he is reported to have said to hisSecretary of the Treasury: "The South has violated the Constitution to break up the Union; I am readyto violate it to preserve the Union; and between you and me, 1 Ex parte Milligan, 4 Wallace, 2.Chase, before we get through this Constitution is going to have a tough time."1 It is certain at least thathe wrote to Mr. Hodges on April 8, 1864, "I felt that measures, otherwise unconstitutional, mightbecome lawful by becoming indispensable to the preservation of the Constitution through thepreservation of the Union. Right or wrong, I assumed this ground and now avow it." 31 2 There is noevidence that Lincoln himself ever personally ordered any of these arrests. The lovable character ofMr. Lincoln, his reconstruction of some of the Southern States upon liberal and humane terms, his lastwords of mercy toward the South, his sweet and gentle life and noble purposes, will endear himforever to the American people, and we review these acts of his administration only for the purpose ofshowing the danger of such usurpations of power.The Confiscation ActIn August, 1861, Congress passed an act known as the Confiscation Act. This act directed thePresident to cause the seizure of all the property of whatever kind belonging to specified classes ofpersons, namely: officers of the rebel army and navy, officers of the civil administration of theSouthern Confederacy and of its so-called Federal State judges, and persons owning property in a loyalstate who should give aid and comfort to the Rebellion. The property so seized was to be proceededagainst by action in rem in the United States courts, and the proceeds were to be used for the support ofthe army of the United States. Of this act. Professor Dunning says: 32"This act assumed the power in Congress to deprive several millions of persons of all their property,and this by simple legislative act. By the theory of our Constitution, such power must be granted by theorganic law, or be inferable from some clearly granted power. There was no claim of an express grant.By implication, the power was held to be deducible from the clauses authorizing Congress 'to declarewar,' 'to make rules concerning captures on land and water,' 'to provide for calling forth the militia to ...suppress insurrections,' and finally, 'to make all laws which shall be necessary and proper for carryinginto execution the foregoing powers.' On the other hand, the Constitution contains the followingprohibitions: 'No bill of attainder shall be passed'; 'no person shall be ... deprived of . . . property,without due process of law; nor shall private property be taken for public use without justcompensation '; and finally, 'no attainder of treason shall work . . . forfeiture except during the life ofthe person attainted.' The exercise of authority under the grants enumerated involved of necessity theviolation of these prohibitions. Respect for both at the same time was inconceivable."

3132

Bryce, The American Commonwealth, vol. i, p. 388, note.

Dunning, Essays on the Civil War and Reconstruction, pp. 30, 31.

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Centralization through National Bank and Tariff Acts

Everyone acquainted with the Civil War who has carefully watched events since that time must haveseen a gradually accelerated movement of the centralization of government commencing at that time.This was brought about by the government's issue of legal-tender notes, by the creation of our nationalbanking system, and especially by the protective tariff then instituted and since continued. Hamilton, inhis masterly statement on the currency, said that bills of credit and paper emissions were expresslyforbidden to the states by our present Constitution, and that the spirit of that prohibition extended to theNational Government. Notwithstanding that it was the intent of the framers of the Constitution toprohibit the National Government, as well as the states, from making paper money legal tender,Congress, in 1862, declared such paper lawful money and a legal tender in payment of public andprivate debts, and authorized the issue of $150,000,000 in notes, our present greenbacks. Never beforehad a statute of the United States made anything but gold and silver coin a legal tender in payment ofdebts. The United States Supreme Court, at a later date, in a suit where these notes had been tenderedand rejected in payment of a debt existing before the war, held that the act making them legal tenderwas unconstitutional; but afterwards, when the court was differently constituted, reversed its owndecision. Without discussing further at the present time the constitutionality of this issue, all willacknowledge that the exercise of the power has made the government all powerful in banking andcommercial affairs. When a government issues the money of the country and has the tempting powerto increase the amount for use in aiding private bankers, such power makes the government almostomnipotent.On February 5, 1791, the first national bank was established. At that time there were only three banksin the United States, and it was contended that it would secure the collection, transportation, andcirculation of the national revenue from one part of the country to another. This was thought to be asufficient justification for its creation. It was proposed in the Constitutional Convention to insert aprovision for the creation of such a corporation, but this was opposed by James Madison and many ofthe other members, and was defeated. 33 When the question of the renewal of the bank charter came upin 1810, Henry Clay declared it as his opinion that the Constitution conferred no power upon Congressto charter a bank or to renew its charter. Clay well said, "Is it to be imagined that a power so vastwould have been left by the wisdom of the Constitution to doubtful inference? ... If, then, you couldestablish a bank to collect and distribute revenue, it ought to be expressly restricted to the purposes ofsuch collection and distribution." 34Now the original bank was permitted for the restricted purposes of the collection and distribution of themoneys of the United States Government, which at that time were collected at different pointsthroughout the whole country. Because of the small number of banks, it was regarded as a necessarymeans of carrying on the fiscal powers of the government. When the national banking system wasestablished during the war there were ample banking facilities throughout the country. The NationalGovernment, however, by passing an act imposing a tax of ten per cent upon the circulation of thesestate banks, actually destroyed them and substituted its vast banking system, now counting upward offifteen thousand banks scattered in every city and village of the land. 35 It is true that the United StatesSupreme Court, in the case of McCulloch v. Maryland, sustained the constitutionality of the actrenewing in 1816 the charter of the bank of the United States. But the charter of this bank was renewedas the fiscal agent of the government at a time when there were comparatively few banks. The national33

4 Elliot's, Deb , pp 413, 474, 611; 5 Elliot's Deb , p. 440.

4 Elliot's Deb , p. 458.35Veazie Bank v. Fenno, 8 Wallace, 533.34

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banking system, however, was created, as we have said, to supplant the State banks, and did supplantthem by taxing their circulation out of existence. The result of the national banking act was the creationof thousands of banks, not a single bank.Senator Beveridge, of Indiana, in The Reader of March, 1907, says: "State rights denied the existenceof this power, 'the power of the general government to create a national bank,' and it seemed that staterights had the best of the argument, contending that the national government has only the enumeratedpowers, and has no power except such as is expressly delegated to it by the Constitution." Howeverthis may be, the creation of thousands of banks scattered all over the land more than any other onecause has centralized power in the National Government. Once admit the authority to createcorporations by the government, and the other authority to interfere with the internal affairs of thestates through the power to regulate commerce, and it would seem to follow that Congress may enact ageneral law for the creation of as many corporations as promoters desire, may control railways and allmeans of intercommunication and reduce the states to insignificance.Under the cover of levying customs duties at seaports, Congress, by the war tariffs, took control of thewhole manufacturing industry of the country. About every manufacturer in the whole land is nowlooking to Congress for the creation of prosperity by obstructing foreign commerce through highprotective tariffs. Under the power to regulate commerce the government destroys foreign imports orcripples them to such an extent as will benefit the few thousands who manufacture the same kind ofgoods in our own country. This is done at the expense of tens of millions who buy them at enhancedprices, and it is the exercise of the most despotic power conceivable on the part of government. In thisway the United States Government has come into close touch with these manufacturing interests allover the land, and is actually fixing the price of the necessaries of life for eighty millions of people. Itexercises the power of determining the price of every shred of clothing which a man wears, of everypiece of furniture in his home, of every piece of lumber, every nail, every piece of glass that enters intothe construction of his house. Nobody would doubt that a law attempting to fix the prices at which thedomestic manufacturer could sell his product would be unconstitutional, yet the Governmentindirectly, by means of its taxing power, and its regulation of foreign commerce, passes a law whichenhances the price of the necessaries of life to everyone. This despotic power in government, morethan anything else, has brought about corruption. It has turned the eyes of fifty thousand manufacturersto Washington for governmental privilege. It is simply a usurpation of power on the part of thegovernment exercised for the benefit of the few at the expense of the remainder of its citizens.Attitude of the President and Congress upn the effect of secessionPresident Lincoln stated that, in his opinion, it was impossible for a state to secede from the Union. Hereaffirmed his statement in his first message to Congress, and in his Non-Intercourse Proclamation ofAugust 16, 1861, declared, "Not the states but the inhabitants of the states were in insurrection againstthe United States." The theory which he maintained throughout the war and down until his death wasthat the state was indestructible either through its own act or through the act of the United StatesGovernment. During his lifetime he established a state government in Louisiana and one or two otherof the Southern States, and he maintained until the day of his death that the states were in the Unionand had never been out of the Union. In the last speech which he ever made, April n, 1865, four daysbefore his death by assassination, he said: "I am much censured from some supposed agency in settingup and seeking to sustain the new state government of Louisiana. In this, I have done just so much as,and no more than, the public knows."Federal UsurpationElectronically published by Family Guardian Fellowship

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Never once in diplomatic correspondence or in proclamations or in any act of Congress during the war,did the Federal Government directly admit the existence of a state of war in the South. The carrying ofmails and the performance of all governmental functions in the South continued during the war so faras the Government was able to carry them on. At the close of the war the United States courtscommenced to sit in the circuits of the South and the United States Supreme Court commenced to hearappeals from the Southern States. Lincoln's view of the indissoluble character of the Union wassustained by the United States Supreme Court. Chief Justice Chase, speaking for the Court, said of theordinances of secession: "They were utterly without operation in law. The obligations of the state, as amember of the Union and as a citizen of the United States, remained perfect and unimpaired. Itcertainly follows that the state did not cease to be a state, nor her citizens to be citizens of theUnion." 36President Johnson adopted the attitude of Lincoln toward the Southern States and tried to carry out thedead President's ideas. He established a state government in each of the Southern States. The thirteenthamendment to the Constitution was submitted to many of these states and was approved by them, sothat it would seem that their legality was recognized by Congress. The temporary organization of theSouthern States under the proclamations of Presidents Lincoln and Johnson were permitted to remainin force until the spring of 1867. The Republican Party in the House of Representatives, led byThaddeus Stevens, openly admitted that they desired to reconstruct the Southern States so as to destroythe Democratic majorities which had existed there before the war. In the language of Mr. Stevens, theymaintained that the Southern States were only "dead carcasses lying within the Union. . . . They havetorn their constitutional states to atoms and built on their foundations fabrics of a totally differentcharacter. Dead men cannot raise themselves. Dead states cannot restore their own existence 'as it was.'Whose especial duty is it to do it? In whom does the Constitution place the power? " 37 And heconcluded that that power was in the Congress and that the Southern States might be treated as subjectprovinces and new states created therein.The Reconstruction Acts and the despotic powers exercised by the generals of the MilitaryDepartmentsAccordingly, Mr. Stevens, as leader of the House, with a rancor of hatred never exceeded, devised alaw for the reconstruction of the Southern States as odious for tyranny and cruel injustice as was everconceived by the perverse intelligence of man. On March 2, 1867, Congress passed, over thePresident's veto, a bill entitled "An Act to Provide for the More Efficient Government of the RebelStates." It was, however, an act for the more thorough military subjection of the Southern States and isknown as The Reconstruction Act. This act recited that no legal state government or adequateprotection of life and property existed in the states of Virginia, North Carolina, South Carolina,Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and it provided that thesestates should be divided into five military districts under the command of officers of the army,assigned thereto by the President. Each of these commanders was to have under his control troopsenough to enforce his authority. They were endowed with unlimited power over all the people of eachdistrict, the will of the military commander taking the place of the law. He could declare anything acrime which he chose to call so, and condemn and punish whomsoever he pleased. He was empoweredto arrest the people of his department without warrant, accusation, or proof of probable cause. Hecould have them tried before local magistrates or before himself. He was empowered to remove all3637

Texas v. White, 74 U. S., 726 of opinion.

Cox, Three Decades of Federal Legislation, p. 367.

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local magistrates if he desired. If, without his permission, a state court presumed to exercise legaljurisdiction over the trial of a person arrested he could break up the trial and punish the judge and thejurors.In vetoing the bill, President Johnson said: "Such a power has not been wielded by any monarch inmore than five hundred years. In all that time no people who speak the English language have bornesuch servitude." The States of Mississippi and Georgia hastened to commence actions in the UnitedStates Supreme Court, asking the court to enjoin the President from the enforcement of thisunconstitutional law which they declared would absolutely destroy the existence of their states, but thecourt held that it had no jurisdiction to enjoin the action of the President. 38The supplementary act of reconstruction of July 19, 1867, provided that the commanders of any districtmight remove any state, municipal, or other official and fill his place subject only to the disapproval ofthe general of the army; and it was made a duty of the commander "to remove from office all personswho are disloyal to the government of the United States or who use their influence in any manner tohinder, delay, prevent, or obstruct the due and proper administration of this act and the acts to which itis supplementary." The act provided that no commander should be bound by any opinion of any civilofficer of the United States. General Schofield was assigned to the first district, which includedVirginia; General Sickles to the second district of North and South Carolina; General Pope to the thirddistrict of Georgia, Alabama, and Florida; General Ord to the fourth district of Mississippi andArkansas, and General Sheridan to the fifth district of Louisiana and Texas.Now observe how some of these generals ruled their departments. General Sickles prohibited themanufacture of whisky in North Carolina, saying that the grain was needed for food, and he prohibitedthe hotel keepers from selling intoxicating liquor; he created a trustee of Newbern Academy, enactedstay laws in North and South Carolina, and abolished imprisonment for debt; suspended the sale ofproperty upon execution for liabilities contracted before December 19, 1860, and suspended theforeclosure of mortgages for one year. In his mightiness he decreed that the wages of agricultural laborwere liens upon the crops; created homestead exemptions for those having families dependent upontheir labor; abolished distress for rent; ordered that the currency of the United States be recognized aslegal tender; decreed that absent debtors be exempted from attachment, and forbade bail in suitsbrought to recover ordinary contract debts. He prohibited discrimination in public conveyancesbetween citizens because of color, and decreed that anyone injured by such discrimination had a rightof action for damages. He acted as a reviewing court and set aside a decree of the South Carolina Courtof Chancery providing that the portion of a fund raised to remount a Confederate cavalry force in 1865remaining unused was to be returned to the contributors, and he judicially determined that the moneybelonged to the United States.General Pope removed the mayor, the chief of police, and other municipal officers of Mobile, andfilled their places with "efficient Union men"; decreed that the printing patronage in his departmentshould be given only to the newspapers that did not oppose reconstruction; allowed Republicancandidates for office in his department to act as election officials, charged with the supervision of thevoting in which they had an interest, and authorized them to receive the votes of persons who were notregistered in the precinct in which they offered their votes.

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General Sheridan, at New Orleans, removed Governor Wells, of Louisiana, and appointed another manas governor in his place; decreed that colored men should be accepted as jurors; abolished theLouisiana Levee Board and assigned its duties to commissioners of his own appointing. He alsoabrogated an act of the Texas Legislature arranging the judicial districts in that state, upon the groundthat the act, as he believed, had been passed for the purpose of legislating two Union judges out ofoffice.General Ord suspended proceedings looking to the sale of an estate on account of a deed of trust formoney due for the purchase of negroes; commanded that illicit stills and their products be sold for thebenefit of the poor on the ground that "poverty increased where whisky abounds"; suspended until theend of the year 1867 the judgment sale of lands under cultivation, crops, or agricultural implements, inactions arising before January 1, 1866; and caused the arrest and conviction by court-martial of W. H.McCardle, the editor of a Vicksburg newspaper, on the charge that he had published articles in hispaper to incite the people to a breach of the peace and to impede reconstruction. 39McCardle procured a writ of habeas corpus from Judge Hill of the United States District Court. Uponthe return thereof General Ord set forth that he held the prisoner by authority of the acts of Congressknown as the Reconstruction Acts, and the court dismissed the writ. McCardle appealed from thedecision to the Circuit and then to the Supreme Court of the United States, which denied a motion todismiss his appeal and heard the case argued. The case, inasmuch as it involved the constitutionality ofthe Reconstruction Acts, was argued very fully before the United States Supreme Court between thesecond and ninth days of March, 1868. Mr. Rhodes says:40 "The constitutionality of the ReconstructionActs was involved, and as five out of the nine Supreme Court judges believed them unconstitutional(so an apparently well-founded report ran) the Republicans in Congress were much alarmed. TheHouse passed a bill requiring- two thirds of the judges to concur before any law should be deemedinvalid, but this was never brought to the Senate from its Judiciary Committee. Later, however, the twoHouses agreed on an act passing the same over the President's veto (March 27, 1868) which, thoughgeneral in its terms, took away from the Supreme Court its jurisdiction in the McCardle case and theappeal was therefore dismissed." 41This method of heading off appeals was a common one in Reconstruction days. About every importantact passed in that period when it once reached the United States Supreme Court was declaredunconstitutional. The Tenure of Office Act was another illustration of such methods, practically takingaway from President Johnson his right of removal from office. He removed Stanton, Secretary of theWar Department, putting General Thomas in his place. An altercation and arrest followed, and aneffort was made by the attorney-general to raise the question of the constitutionality of this act byappeal, but the complaint of Secretary Stanton was withdrawn and the effort to test its constitutionalitythus destroyed.In 1789 the leading members of the House of Representatives discussed at great length the power ofthe President of the United States to remove a Secretary of the Department of Foreign Affairs fromoffice without the consent of the Senate, and it was determined, by a vote of thirty-four to twenty, thatthe President had full power to remove without the concurrence of the Senate. 42 The determinationthen made was followed until the administration of President Johnson, and then the Tenure of Office39

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Act was passed for the purpose of depriving him of the right of removal. Since that time the right hasbeen acknowledged and to-day is unquestioned.The Reconstruction Act provided for the election of a constitutional convention, and the formation of aconstitutional government in each of the Southern States, excluding the greater part of the white votersof those states from taking part in the formation of their government. Then Congress made theiradoption of the fourteenth amendment to the Constitution a condition of its receiving as members therepresentatives of the states which had framed constitutions.The Ku Klux Law and the Civil Rights Bills held unconstitutionalCongress, in April, 1866, passed what was known as the Civil Rights Act. On March 31, 1870, itpassed what was known as the Enforcement Act; again on February 28, 1871, a third act amending theEnforcement Act; and on April 20, 1871, a fourth act amending the Enforcement Act. All of these lawswere unconstitutional. The last amendment provided as follows: "If two or more persons in any state orterritory conspire or go in disguise upon the highway or upon the premises of another for the purposeof depriving, either directly or indirectly, any persons or class of persons of the equal protection of thelaws or of equal privileges and immunities under the laws, or for the purpose of preventing orhindering the constituted authorities of any state or territory from giving or securing to all personswithin such state or territory the equal protection of the laws; he or they are guilty of a misdemeanorand, upon conviction, liable to a fine of not less than $500 or greater than $5,000, and imprisonmentfor not less than six months nor more than six years, or both said fine and imprisonment."This law was known as the Ku Klux Law, and it sought to give to the National Government the powerto execute the criminal laws in each of the states, especially in each of the Southern States where it wasalleged that the Ku Klux were committing depredations upon the property and taking the lives ofcolored people. For eleven years this continued to be enforced. Finally, a case deciding theirconstitutionality reached the United States Supreme Court, and that court held that the law was notdirected to the act of a state, but only against the acts of individuals gathering for the commission ofcrime, and that the fourteenth amendment to the Constitution did not apply to such a condition; that thelaw was directed merely against ordinary crime in the state, of which the state courts had exclusivejurisdiction, and that the law was unconstitutional and void. 43On March 1, 1875, General Grant approved a bill known as the Civil Rights Bill, the first billmentioned above being unconstitutional. Its object was to secure to negroes equal rights in inns, publicconveyances, and places of public amusement, and to prevent them from being deprived of the right ofsitting on juries. Eight years later the United States Supreme Court declared the first and secondsections of the act null and void, holding that so long as a state did not pass a law depriving the negroof these rights the Supreme Court could not interfere, since the prohibition of the fourteenthamendment was directed against a state which discriminated against a citizen for any reason, anddeprived him of the civil rights which other citizens enjoyed; and that, under the fourteenthamendment, Congress had no authority to attempt to regulate the rights of the citizens of the states,thus leaving the whole question of the social rights of a citizen where it had ever belonged to thestate governments. 44

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Laws of carpetbag governments declared unconstitutional

The constitutions in many of the states, reorganized by carpetbag politicians, contained manyprovisions intended to prevent the Southern leaders, who had had connection with the war, from evenearning their livelihood. In the Constitution of Missouri there was a provision to the effect that everyperson who had aided and sympathized with the South was incapable of holding any office of honor orprofit or trust in the state. No such person could be an officer, trustee, or manager of any public orprivate corporation, he could not act as a professor or teacher in any educational institution or in anycommon school, nor could he hold any real estate or other property in trust for any church, religioussociety, or congregation. An oath of loyalty was required as a condition precedent to his exercising thecalling of a bishop, priest, deacon, clergyman, or lawyer, such oath being that he had never directly orindirectly done Civil Rights Cases, any of the acts of disqualification against which the amendmentwas leveled.Sixty days after this Constitution took effect no person was to be allowed, without first taking thisoath, to practice as attorney at law, or to act as priest, deacon, minister, clergyman, etc., of anyreligious persuasion. If he continued without taking such oath after the sixty days he was liable, onconviction thereof, to be punished by a fine of not less than $500, or imprisonment of not less than sixmonths in the county jail, or both, at the discretion of the court. The Rev. Mr. Cummings, a priest ofthe Catholic Church and a citizen of Missouri, was indicted and convicted in the Circuit Court of PikeCounty for continuing his work as priest without taking such oath. He was sentenced to pay a fine of$500 and to be committed to jail until the fine and the costs were paid. On appeal from this decision tothe United States Supreme Court, the question was presented whether this act was not in fact a bill ofattainder, and whether it was not obnoxious to that clause of the Constitution of the United Stateswhich prohibited a state from passing such bill of attainder or ex post facto law. That court held thelaw ex post facto in its nature and reversed the decision of the state court. 45Supervision of elections in the North by United States marshalsThe Constitution provides that the times, places, and manner of holding the elections for senators andrepresentatives shall be prescribed in each state by the legislature thereof, but that Congress at any timemay alter such regulations, except as to places of choosing the senators. No clause in the Constitutioncreated so much opposition before the conventions of the adopting states. The conventions in NorthCarolina, South Carolina, Virginia, Massachusetts, Rhode Island, New Hampshire, and New Yorkstrongly remonstrated against it, but the people were assured that the National Government wouldnever avail itself of the provision. For many years, however, after the Civil War and until well down inthe eighties. Federal supervisors and marshals were empowered by a statute of Congress to superviseelections in every state where members of Congress were to be elected. They supervised the polls inNew York and many other states where assemblymen, mayors, state and city judges were beingelected. They often examined the ballots for these state officers, claiming that they were authorized tobe present at the opening of all the boxes, those for state and local officials as well as those forCongressmen. By the provisions of the statute authorizing this provision the United States DistrictCourt could appoint two supervisors for each district, and the United States marshal could create asmany deputies as he deemed necessary to aid him in enforcing the law. It is said that 15,000supervisors and deputy marshals surrounded the polls at the general election of 1876, and many state

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officers were punished by the Federal courts for alleged violations of both the national statute and statelaws at that election.Ejection of legislators in Louisiana by United States troopsIn the autumn of 1874 an election for members of the Legislature took place in the State of Louisiana.On the face of the returns the Conservatives, or what were known as the white man's party, had amajority of five in a House of Representatives of one hundred and eleven members. The governmentof Louisiana had been so bad for many years under the control of the negro party that even the betterclass of negroes, becoming disgusted, deserted their party and voted for the white candidates. TheReturning Board, controlled by Governor Kellogg and Marshal Packard, found that fifty-threeRepublicans and only fifty-three of what were known as the Conservatives had been elected, andrendered no decision as to the other five seats. A committee appointed by the United States House ofRepresentatives to examine as to the act of the Returning Board, and as to the honesty of theConservatives, whose members had been rejected because of alleged intimidation and fraud, consistingof Charles Foster, afterwards Secretary of the Treasury, William Walter Phelps, and Clarkson N.Potter, visited New Orleans and made their report to the effect that the action of the Returning Boardwas illegal, and that in substance the Conservative majority was procured by honest means. When,however, the Legislature came to assemble, General de Trobriand, of the army of the United States,entered the House of Representatives in uniform, his sword at his side and escorted by his staff.Furnished with an order by Governor Kellogg to clear the hall of all not returned as legal members bythe Returning Board, he removed the five members by force, leaving the Republicans in control, whofinally organized the House and proceeded to do business. The acts of Charles I and of Cromwell, inremoving members from the House of Commons by violence, ever since have been landmarks inusurpation. This act of President Grant and of his general ought to stand side by side with these earlyacts of tyranny.Partisan spirit of reconstructionProperty of considerable value was abandoned from time to time by citizens of the Southern Statesduring the Civil War, and was taken possession of and sold by the National Government and theproceeds deposited in the United States Treasury. On December 8, 1863, the President, pursuant to theauthority of Congress, made a proclamation offering pardon to citizens of the South who would take aprescribed oath and return to their allegiance to the National Government. As an inducement to bringabout this result the President promised restoration of all their rights of property except as to slaves,and offered to return to the owners of abandoned property the proceeds thereof in the United StatesTreasury. Thousands of Southern men availed themselves of this proclamation, and after the war manyclaims for the proceeds of such abandoned property were filed in the Court of Claims. The fact that theclaimant had taken the oath after the proclamation, had availed himself of the conditions of theproclamation, and had received the pardon of the President was regarded as sufficient to entitle him toprosecute his claim before the court without other proof of his loyalty. On July 12, 1870, Congresspassed, as a rider to the Appropriation Bill, a law providing that no prior pardon of the Presidentshould be admissible in evidence on the part of any claimant in the Court of Claims in support of hisclaim for the proceeds of abandoned property, and that proof of his loyalty must be made irrespectiveof the effect of the proclamation of the President and his availing himself thereof; and that where theclaim had been dismissed and the claimant took an appeal therefrom, that the Appellate Court, when itappeared that proof of loyalty depended alone upon such pardon, should affirm the judgment of theFederal UsurpationElectronically published by Family Guardian Fellowship

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Court of Claims. This statute was declared unconstitutional as an infringement of the right of thePresident to grant such pardon and as destroying its effect. 46During all the period between 1789, when the first Congress under the Constitution convened, and1863 the United States Supreme Court had declared only two statutes unconstitutional. 47 It is true thatin two other cases during that period the court had held that duties imposed upon it by the Congresswere not judicial in their nature and that therefore they were under no obligations to perform them. 48 Inaddition to the unconstitutional acts described in this chapter passed in the war and Reconstructiondays, the United States Supreme Court declared four other acts of that period unconstitutional. 49Between the years 1863 and 1870 eleven statutes were passed by Congress which were declaredunconstitutional by the Supreme Court of the United States. During the same period the examinationby the Supreme Court of several Congressional statutes was prevented by acts of Congress repealingthe law allowing appeals to that court. So that during seventy-four years of the history of the countrybetween 1789 and 1863 the United States Supreme Court declared two Congressional actsunconstitutional; while during the period from 1863 to 1870, a period of only seven years, elevenstatutes were declared unconstitutional and many more would have been declared unconstitutional hadthe court ever had the opportunity to pass upon them. No facts could more strongly demonstrate thatthis era of the latter part of the Civil War and the Reconstruction Period was an era of usurpation thanthe decision of the highest court that so many statutes passed in that period were void as usurping therights of the several states.The importance of the facts which we have given are found in their violence. We, perhaps, have noreason for fear in this country that our liberties will be violently wrested from us. The danger is thatthey will be secretly undermined and gradually destroyed. The usurping acts of the war were whitecompared with the cold calculating despotism of Reconstruction days. Mr. Rhodes quotes BishopGalloway, of Mississippi, as saying in 1903: 50 "Those pitiless years of reconstruction! Worse than thecalamities of war were the 'desolating furies of peace.' No proud people ever suffered such indignitiesor endured such humiliation and degradation."After the Battle of the Boyne, for more than a century England kept the Irish Catholics reduced to thecondition of helots, attempting to extirpate their religion, excluding them from Parliament, frommunicipal office, from legislatures, and from the jury box. The prevailing party of reconstructionsought to accomplish the same results, not because they feared the South as England fearedCatholicism, but for the selfish and wicked purpose of political supremacy. Senator Howe, speaking inthe United States Senate in those days in behalf of the reconstruction policy of his party, said:"Do senators comprehend what consequences would result necessarily from restoring the functions ofthose states! It will add fifty eight members to the House of Representatives, more than one fourth ofits present membership. It will add twenty two members to the Senate; more than one half of thepresent membership. The Constitution designed the legislature to be independent of the Executive. Butwhat independence has that legislature in which the executive at his pleasure may pour so manyvotes!"146

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When General Terry, in command of the department which included the State of Georgia, oustedtwenty-four Democrats from the Legislature and by his own appointment filled their places byRepublicans, at the same time restoring a number of negroes who had been expelled, Carl Schurzdeclared in the United States Senate that these acts of General Terry's were usurpations. 1 Cox, ThreeDecades of Federal Legislation, p. 352.Senator Henry Wilson, of Massachusetts, replied:"Law or no law, we want to keep this state government in power." In the House of RepresentativesThaddeus Stevens, with a malignity as bitter as characterized the leaders of the French Revolution, andthat unscrupulous demagogue, Benjamin F. Butler, fired their followers with hatred and fanaticism toenact these pitiless and unconstitutional laws.War is never done. It leaves its baleful seed for generations. We are suffering to-day from theseusurpations. The exercise of such powers accustomed our people to the sight of tyranny, and as apartial result of those deeds our Government is being transformed. Already the Constitution byconstruction has been stretched to cover a multitude of conditions never anticipated by its makers; andwe are face to face with the problem whether ours is a government under a written constitution and thelaws made pursuant thereto, or whether it is a government by ambitious and usurping men.

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III EXECUTIVE USURPATION

"The only liberty that humanity can tolerate is the liberty that is under the law."E. J. PHELPS."Reasonings from the excesses of liberty or the neglect of the people, in favor of arbitrary government,involve the tacit fallacy that perfect or at least superior wisdom and virtue will be found in suchgovernment."HALLAM."It is necessary to create in the multitude, and through them to force upon the leading ambitious men,that rare and difficult sentiment which we may term a constitutional morality * * * a paramountreverence for the forms of the constitution, enforcing obedience to the authorities acting under andwithin those forms, yet combined with the habit of open speech, of action subject only to definite legalcontrol, and unrestrained censure of those very authorities as to all their public acts."GROTE."Despotism often promises to make amends for a thousand ills; it supports the right, it protects theoppressed, and it maintains public order. The nation is lulled by the temporary prosperity whichaccrues to it; until it is roused to a sense of its own misery."DE TOCQUEVILLE.

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CHAPTER III EXECUTIVE USURPATION

Power of President exceeds that of any constitutional monarchPRESIDENT ROOSEVELT, in his message of December, 1906, in justification of his criticism ofFederal judges, said: "It is the only practicable and available instrument in the hands of free people tokeep such judges alive to the reasonable demands of those they serve." These words might be invokedas a justification of what may appear, in this and the next chapter, to be a severe criticism of hisexecutive action, but it would seem that the only limitations upon criticism, even of one holding theexalted position of head of the nation, should be those which justice, impartiality, and honest motivesnecessarily impose.Before discussing the acts of the President which exceed his authority, let us observe for a moment thevast power which he legitimately exercises. All of the power necessary to execute the laws is conferredupon the President. It is true that there is an enumeration of executive powers, but in view of a recentdecision of the United States Supreme Court,1 upon the like scope of judicial power in theConstitution, we might well assume that the powers enumerated as executive powers are not exclusiveof such other powers as are necessary 1 Kansas v. Colorado, 206 U. S., 83.to the execution of the laws. Besides ambassadors and members connected with the diplomatic andconsular service, the President now nominates, subject to confirmation by the Senate, about 8,000officials. On June 30, 1905, there were upward of 300,000 positions in the executive civil service,excluding- those of the diplomatic and consular service. At that time about 100,000 of them were notsubject to the rules requiring the appointments to be made from competitive examinations. Under theFederal Rate Bill the Interstate Commerce Commission, which is appointed by the President, is givenpower to establish the freight rates of the commerce of over 80,000,000 of people, on 220,-000 milesof railway. What greater power could an ambitious President wish than the appointment and control ofa commission which fixes the rates of freight and of passenger traffic on every interstate railway in theUnited States?Unless the other departments of government, whose office it is to check executive usurpation, arebacked by an effective public opinion, the executive has always the means of setting them aside orcompelling them to subservience. The courts will not interfere with the President or the other executiveofficers of the government in the execution of their ordinary official duties, even when those dutiesrequire an interpretation of the law. 51The men who framed the Constitution and the state delegates who adopted it were disgusted with thefeeble-ness which had been shown under the Confederation, and they went to the other extreme inmaking the President the most powerful ruler, as it has turned out, in the world to-day. They wereundoubtedly influenced by the fact that everyone looked to George Washington as the first President,and they little foresaw the terrible power which would be centered in the President when the UnitedStates would consist of forty-six states, extending from the Atlantic to the Pacific and embracing3,500,000 square miles of territory, besides many dependent colonies. "The President," says Mr.Bryce, "enjoys more authority, if less dignity, than a European king." 52 "Within the sphere of national

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administration," says Mr. Fairlie, 53 "his" (the President's) "effective personal authority is of more valuethan that of most constitutional monarchs of Europe or even of their prime ministers."The French President is chosen for seven years by the national assembly, consisting of the Senate andChamber of Deputies. He is given the power to execute the laws and the appointment of the officers ofthe government; but when the Ministry fails to receive the support of the Chamber he simply callsupon some member of the opposition to form a Ministry, and the Chamber of Deputies rules Francethrough its ministers as the House of Commons rules England. Casimir-Perier resigned his office asPresident of the Republic of France within a few months after his election, saying that the President ofthe Republic exercised so little real power as to be entirely overbalanced by the omnipotence of theFrench Chamber of Deputies. The power of the President of the French Republic has been steadilydeclining, while the power of the Chamber of Deputies has been as steadily growing. The President isnot responsible for his official conduct, his acts being countersigned by one of his ministers. Heusually does not even attend cabinet consultations in which the policies of government are discussed.Sir Henry Maine described the French President as follows: "The old kings of France reigned andgoverned. The constitutional king, according to M. Thiers, reigns but does not govern. The President ofthe United States governs but does not reign. It has been reserved for the President of the FrenchRepublic neither to reign nor to govern." 54The King of Italy appoints the ministers when the ministry ceases to have the confidence of thepopular branch of the legislature. His sanction is necessary to the validity of a law passed by thelegislature, but he never refuses that sanction. Even the treaties which he makes, especially treaties ofcommerce, require the assent of both chambers. No act of the legislature becomes valid unlesscountersigned by a minister, and in Italy, as in France, the popular branch of the legislature actuallycarries on the government, the king himself being subject in most respects to their control.The German Emperor, aside from his position as king of Prussia, does not possess powers so extensiveas the President of the United States. The laws enacted by the Bundesrath and the Reichstag areenforced in the several states of the empire by local officers, and the German Chancellor rather thanthe Emperor has general supervision over their enforcement. The direct appointments to office by theGerman Emperor and his Chancellor are thus fewer than those of our executive department. Asidefrom his direction of the army and navy and the charge of foreign affairs as Emperor of Germany, heacts as the delegate of the confederated government in about all other matters under the direction of theBundesrath. He has no veto. The German Emperor appoints and dismisses his ministers and they areaccountable to him, not to the legislative power, just as the members of the cabinet are accountable tothe President. They are the ministers of the king as the cabinet are the ministers of the President, andnot at all, as in England, France, and Italy, the ministers of the parliamentary majority.In Switzerland, the President of the Swiss Confederation is little known to the people and his powersare very limited. The federal laws are carried out generally by the authority of each canton, and eventhe army is under the management of the cantons, the central government, however, making theregulations, appointing the superior officers, and having the command in the field.Kings have ever been the bugaboo of our American people; but the President of the United States today, in the legitimate exercise of his authority, exercises a greater power than any constitutional5354

National Administration of the United States, p. 41.

Popular Government, Lowell, p. 251.

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sovereign on the face of the earth, his power in Europe being exceeded only by that of the czar or thesultan. All the bulwarks of liberty were reared not against the English Parliament but against theEnglish king. The same is true of all modern parliamentary governments. "Do not make me a king,"said Cromwell, "for then my hands will be tied by all the laws which define the duties of that office,but make me director of the commonwealth and I can do what I please; no statute restraining andlimiting the royal prerogative will then apply to me."The President of the United States may approach the execution of his powerful office in the spirit ofbeing a simple instrument of Providence, but if he is not endowed with the clearest head and mosteminent common sense he will become so intoxicated by power as to imagine that he has becomeProvidence itself. Inasmuch as all of his duties are not defined, and the exercise of those defined isdiscretionary, he can commit innumerable violations against the Constitution, and commit them insuch a manner as to deprive the United States Supreme Court of all jurisdiction over the matter. Thereis no remedy but impeachment. For these reasons usurpations of power by the President are muchmore dangerous than by the Legislature. The command to the Roman dictator was to take care that thestate received no harm; such indefinite commands and discretionary duties open endless avenues forthe advancement of absolutism. But, say those who exalt the power of the President and contend thatthere is no danger to the people from his usurpations, he is restrained by the people, he is "the servantof eighty million sovereigns, whose soul-inspiring purpose is to serve his fellow-citizens."Popular election no restraint on arbitrary powerLet us see if this fact is a safeguard against usurpation. Louis Napoleon was elected President of theFrench Republic in December, 1848, by a large majority. In 1850 a law was passed restricting thesuffrage and disfranchising about 3,000,000 voters. This law, as I remember, was passed with his tacitconsent, but the wily President wished to be emperor. In order to be emperor he must appear as thechampion of popular rights, so in 1851 he called upon the Chamber to repeal the disfranchisement lawof 1850, and to restore the franchise to the 3,000,000 voters. They refused. Within about a month theCoup d'Etat of December 2d took place, the chief statesmen and generals of France were arrested intheir beds, dragged off to prison, and his usurpation was approved by 8,000,000 electors. He wasconfirmed as emperor in November, 1852, by an overwhelming vote, and even so late as a few weeksbefore the Franco-German war his imperial rule was ratified by a large majority. During the whole ofhis reign the members of the Chamber of Deputies were elected by universal suffrage, and yet the ruleof Louis Napoleon was a despotism."A bold President," says Mr. Bryce, "who knew himself to be supported by a majority in the country,might be tempted to override the law and deprive the minority of the protection which the law affordsit." 55 "The gloss of zeal for the public service," says Edward Livingston, "is always spread over acts ofoppression, and the people are sometimes made to consider that as a brilliant exertion of energy in theirfavor which, when viewed in its true light, would be found a fatal blow to their rights. In nogovernment is this effect so easily produced as in a free republic; party spirit, inseparable from itsexistence, aids the illusion, and a popular leader is allowed in many instances impunity, and sometimesrewarded with applause, for acts which would make a tyrant tremble on his throne." 56 The people whoelect the President can make and unmake constitutions, and it is natural for a strenuous, ambitious

5556

Bryce, The American Commonwealth, vol. i, p. 64.

Bryce, The American Commonwealth, vol. i, p. 63, note.

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President, when sustained by the people, to feel that he is endowed with powers beyond theconstitution.Separation of coordinate departments of the national governmentArticle XXX of the Massachusetts Constitution of 1780 runs thus: "In the government of thiscommonwealth the legislative department shall never exercise the executive and judicial power, oreither of them; the executive shall never exercise the legislative and judicial power, or either of them;the judicial shall never exercise the legislative and executive power, or either of them, to the end it maybe a government of laws and not of men." The same principle of a separation of these threedepartments is emphatically asserted in the constitutions made during the Revolutionary War inMaryland, North Carolina, New Hampshire, Virginia, and Georgia. The first resolution concerning theConstitution of the United States passed by the Constitutional Convention stated:"That a national government ought to be established, consisting of a supreme legislative, executive,and judiciary." Six states voted for the resolution, Connecticut voting against it, and New Yorkdivided. 57Thomas Jefferson, in a letter to William C. Jarvis, written with reference to the stability of ourRepublic many years after he had retired to private life, said:"If the three powers of our government maintain their mutual independence of each other it may lastlong, but not so if either can assume the authority of the other." Madison said: "If it be a fundamentalprinciple of free government that the legislative, executive, and judiciary powers should be separatelyexercised, it is equally so that they be independently exercised." 58 Montesquieu wrote: "There is noliberty if the judiciary power be not separated from the legislative and executive powers." And ChiefJustice Chase, speaking for the United States Supreme Court, says: "It is the intention of theConstitution that each of the great coordinate departments of the government, the legislative, theexecutive, and the judicial, shall be, in its sphere, independent of the others." 59The acts and criticisms of the President tend to destroy the separate power of the JudiciaryIn a speech made at Harrisburg on October 4, 1906, the President of the United States said: "In somecases this governmental action must be exercised by the several states individually. In yet others it hasbecome increasingly evident that no efficient state action is possible, and that we need, throughexecutive action, through legislation, and through judicial interpretation and construction of law, toincrease the power of the Federal government. If we fail thus to increase it, we show our impotence."This statement is but a reiteration of similar statements made again and again by the President. He hasmade no secret of his desire to increase the powers of the central government through "judicialinterpretation and construction of law."Mr. Elihu Root, as the Secretary of State, holds the department first in importance in the nationalgovernment and the one in which the President of the United States has always taken greater part thanany other. He also occupied the position of Secretary of War under President Roosevelt during his first57

Elliot's Deb., vol. v, p. 134.

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term of office. He and the President are warm personal friends. Mr. Root has been regarded as thenearest to the President of any of the members of his cabinet. On December 12, 1906, Mr. Root,speaking in New York, after noting "the gradual passing of control" into the hands of the nationalgovernment and summarizing "other projects tending more and more to obliteration of state lines,"declared: "It may be that such control would better be exercised in particular instances by thegovernment of the States, but the people will have the control they need either from the States or fromthe national government, and if the State fail to furnish it in due measure, sooner or later constructionsof the Constitution will be found to vest the power where it will be exercised in the nationalgovernment." Now what condition of affairs have we when the President expresses his opinion that weare impotent if we do not increase the power of the national government through executive action,through legislation, and "through judicial interpretation and construction of law," and the Secretary ofState, presumably speaking for the administration which he represented, declares that if the states failto furnish this power in due measure, "sooner or later constructions of the Constitution will be found tovest the power where it will be exercised in the national government."The President appoints the judges of the Supreme Court of the United States and of the District andCircuit courts. During his term of office as President he has appointed three of the nine AssociateJustices of the Supreme Court, seventeen of the twenty-nine United States Circuit Court Judges, andforty-five of the eighty-two Judges of the United States District Court. Mr. Bryce says: "Yet even theFederal Judiciary is not secure from the attacks of the two other powers, if combined. For thelegislature may by statute increase the number of Federal justices, increase it to any extent, since theConstitution leaves the number undetermined, and the President may appoint persons whom he knowsto be actuated by a particular political bias, perhaps even prepared to decide specific questions in aparticular sense." 60 Professor Dicey, speaking of our Federal Judiciary, says: "Judges, further, must beappointed by some authority which is not judicial, and where decisions of a Court control the action ofgovernment there exists an irresistible temptation to appoint magistrates who agree (honestly, it maybe) with the views of the executive." 61 Daniel Webster, at the Whig Convention at Worcester, Mass.,in 1832, speaking of Jackson and his attitude toward the United States Supreme Court, said: "Thejudicial power cannot stand for a long time against the executive power. The judges, it is true, holdtheir places by an independent tenure, but they are mortal, and the vacancies will be filled by judgesagreeing with the President in his constitutional opinions."The President has taken a most solemn oath to "preserve, protect, and defend the Constitution," andhaving taken that oath he boldly declares that we need to increase the power of the governmentthrough "judicial interpretation and construction," and his Secretary of State tells us that it will beincreased by such "constructions." A deliberate attempt on the part of the President or the SupremeCourt to amend the Constitution by construction, when the Constitution distinctly provides the onlylegal method of amendment, is an attempt to take away the sovereignty of the people and to vest thepower of amendment in a department of the government where it does not belong, and is nothing shortof a flagrant usurpation of power.Is there doubt that the President desires to accomplish this through the United States Supreme Court? Ifthere is, the doubt can be. removed. The President, in 1906, said: "I cannot do better than base mytheory of governmental action upon the words and deeds of one of Pennsylvania's greatest sons, JusticeJames Wilson. He developed, even before Marshall, the doctrine (absolutely essential, not merely to6061

Bryce, The American Commonwealth, vol. i, p. 298.

Dicey, The Law of the Constitution, p. 174.

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the efficiency, but to the existence of this nation) that an inherent power rested in the nation outside ofthe enumerated powers conferred upon it by the Constitution, in all cases where the object involvedwas beyond the power of the several states and was a power ordinarily exercised by sovereign nations.Certain judicial decisions have done just what Wilson feared: they have, as a matter of fact, leftvacancies, left blanks between the limits of actual national jurisdiction over the control of the greatbusiness corporations. Many legislative actions and many judicial decisions, which I am confident timewill show to have been erroneous and a damage to the country, would have been avoided if ourlegislators and jurists had approached the matter of enacting and construing the laws of the land in thespirit of your great Pennsylvanian, Justice Wilson in the spirit of Marshall and of Washington. Suchdecisions put us at a great disadvantage in the battle for industrial order as against the present industrialchaos." 62The President here declares that in all cases where the object involved was beyond the power of theseveral states and was a power ordinarily exercised by a sovereign nation, the United States SupremeCourt ought to hold that it is an inherent power vested in the nation, outside of the enumerated powersconferred upon it by the constitution. This Court has ever held that there was no such inherent power inthe national government and their latest decision reiterates that holding. 63 Notwithstanding this, thePresident, the head of a separate and distinct department of the government, of which the Judges of theUnited States Supreme Court should be absolutely independent, declares their holding to have beenerroneous, and a damage to the country, and does not seem to see the impropriety of such a statement.But the President has not stopped even there in his criticisms of the Federal Judges. In his annualmessage to Congress of December, 1906, speaking of a recent decision of a United States DistrictCourt judge, he said: "I have specifically in view a recent decision by a District Judge, leaving railwayemployees without a remedy for violations of a certain so-called labor statute. It seems an absurdity topermit a single district judge against what may be the judgment of an immense majority of hiscolleagues on the bench to declare a law solemnly enacted by the Congress to be unconstitutional."The Judge referred to was Judge Walter Evans, and the decision referred to was in the case of TheOrder of Railway Telegraphers against the Louisville & Nashville Railroad Company. Judge Evansdecided in favor of the railroad on the ground that Section 10 of the Act of Congress of June 1, 1896,on which the suit was brought, was void. The President referring to this decision made the aboveremarks, in which he tells us that an "immense majority" of the colleagues of Judge Evans may notagree with him as to the decision in that case.Proposed bill giving the President arbitrary power of removal of Federal judgesNow what is the natural effect of such criticism on the part of the President of the United States ofDistrict Court judges? Those judges are ambitious for advancement. The President is able to appointthem to vacancies occurring in the Circuit Court, or even to vacancies which may occur upon theUnited States Supreme Court. Those District Court judges are in close relation with his administration.He has appointed many of them to the position. Can there be any doubt that the criticisms of thePresident who can advance them, made in a message to Congress, read by all the people, and the fearof such criticisms on their own part, will affect their independence? The Representatives in Congressare, however, seeking to clothe the President with the dangerous power of removing Circuit and62

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District Judges without formulating charges, without a hearing, and whenever in his judgment thepublic welfare will be promoted. In January, 1907, Mr. De Armond introduced such a bill in the Houseof Representatives. 64 The President has invoked James Wilson as authority for his construction of theConstitution, yet Mr. DE ARMOND introduced the following bill, which was referred to theCommittee on the Judiciary and ordered to be printed.A BILLTo make additional provision for the retirement of judges.1 Be it enacted by the Senate and House of Representatives of2 the United States of America in Congress assembled. That3 whenever, in his judgment, the public welfare will be pro4 moted by the retirement of any judge of the United States5 the President shall, by and with the advice and consent of6 the Senate, nominate and appoint a suitable person pos7 sessing the qualifications required by law to the office to8 be vacated by such retirement, and thereupon and thereby9 the incumbent shall be retired and the judge newly ap10 pointed shall enter upon the duties of and hold the office,11 agreeably to the provisions and requirements of the law12 and subject to be retired as herein or otherwise provided.13 The reasons for retirements hereunder shall be stated in14 making nominations.James Wilson, in the Pennsylvania Convention for the adoption of the Constitution, said: "I believethat public happiness, personal liberty, and private property depend essentially upon the able andupright determinations of independent Judges." Chief Justice Marshall, in the Virginia Convention, in1829, well said: "The judiciary department comes home in its effects to every man's fireside; it passeson his property, his reputation, his life, his all. Is it not in the last degree important that he [a judge]should be rendered perfectly and completely independent, with nothing to control him but God and hisown conscience? I have always thought, from my earliest youth until now, that the greatest scourge anangry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a64

IN THE HOUSE OF REPRESENTATIVES. JANUARY 14, 1907.

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dependent judiciary." 65 Will the independence of District judges continue if they are subject to attacksby the President who appoints them? Am I not justified in saying that the executive, in view of hisappointive power, should never either by words of approval or disapproval make himself a reviewingpower of their decisions?The Star Chamber, created by the King and filled by judges who were his servile tools, developed suchtyrannical abuses that the English people destroyed not only the Court but Charles I himself for suchtyranny. Our people should demand the fundamental constitutional right for the federal judiciary tounquestioned independence, free from any interference from the executive either by influence inadvance of a decision or by attack after a decision. If federal judges are not already affected by theopinions of the President, how long will they continue to resist such strenuous assaults upon theiraction? The consequences of such attacks on the Supreme Court of the United States by the Presidentought to be so plain as to alarm the dullest comprehension. The Emperor Tiberius, according toTacitus, was in the habit of taking his seat in the law courts, and by his presence overawing them,thereby gradually destroying the freedom of the courts. His methods were not less calculated toinfluence the action of the judges than those of our President.But it is not alone that the independence of a separate branch of the government is thus imperiled bythe President's action; it is of the highest importance that the people believe that the United StatesSupreme Court decides its cases, if not always wisely, at least without being- influenced by anotherbranch of the government. Should the members of that court be put under the embarrassment of havingit appear that their action is influenced by the words of the President? "Next in importance to the dutyof rendering a righteous judgment is that of doing it in such a manner that will beget no suspicion ofthe judge." 66 And Lord Campbell declared "that tribunals should take care that not only in their decreesthey are not influenced by overpowerful interests, but to avoid the appearance of laboring under suchinfluence." 67 How can the judges of theFederal courts avoid the appearance of laboring under the influence of the overpowerful executive if hecontinues in his exhortations that the Executive and Congress possess inherent powers and that theSupreme Court should so decide? How can these courts retain their independence if, after they havemade decisions, they are subject to animadversion in the annual messages of the President toCongress? Such conduct, I submit, tends clearly to impair the usefulness of the judiciary as anindependent department of the government and merits condemnation.Presidents attempts to influence the action of CongressIt is not alone the courts which the President apparently has attempted to influence in their action, buthe persistently seeks to control the action of the Senate and, to some extent, the House ofRepresentatives. It is the intent of the Constitution that Congress, made up of the representatives of thepeople, shall be the judges of what laws are required by the public welfare. If the President bringspower to bear upon Congress to affect legislation, even though the people wish the legislation, he isstill encroaching upon the field of an independent department of government. During the last few yearsmany measures have been enacted under stress of executive pressure which otherwise would havestood no chance of passage. In the South American countries, congresses and courts employ65

Miller, The Constitution of the United States, p. 341, note 1.

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themselves in registering executive decrees. If present conditions continue the same condition willexist in our own country. People desiring legislation well know this, and again and again we read in thenewspapers of applications being made by the great railroad interests of the country to the President,not to the Congress, to institute and affect legislation. The United States Senate has come to realizethat no fight is thoroughly equipped unless the President is in it. He longs to take a hand in legislation.The newspapers for several years have been representing him with his "big stick " going after theUnited States Senate and House and compelling them to pass laws. In the passage of the Elkins Bill inthe Senate; in the passage of the Rate Bill, and practically all the leading measures which have comebefore the two Houses of Congress, the President has had his innings and his party in the Senate andHouse have consulted with him and have carried out his instructions. The American people are comingto look upon the President as the real power behind legislation. When the Rate Bill was in the Senateof the United States, Senator Aldrich, of Rhode Island, and other Senators sought to amend it byproviding for a judicial review of the action of the Inter-state Commerce Commission, but thePresident's party opposed this action. James Wilson, whom President Roosevelt invokes as authorityupon the Constitution, in his lectures upon Law in 1791 before the then College of Philadelphia, said:"The independence of each power (or Department of Government) consists in this, that its proceedingsand the motives, views and purposes, which produce these proceedings should be free from theremotest influence, direct or indirect, of either of the other two powers." The practice, it is said, ofwearing hats during the sessions of the House of Commons is an expression of the early feeling of theEnglish Commons against an appearance of servility; they would not uncover before Speaker orKing. 68In 1783, when Fox brought in his famous bill for organizing the government of India, a great outcryagainst the bill arose. It was alleged that the object of the bill was the centralization of the immensepatronage of India in the hands of a few old Whig families. George III, seeing the people arousedagainst the Ministry, asked Lord Temple to let the members of the House of Lords know that any peerwho should vote in favor of the bill would be regarded as an enemy of the King. Four days later theHouse of Commons by a vote of 153 to 80 resolved that: "To report any opinion, or pretended opinion,of his Majesty upon any bill or other proceeding pending in either House of Parliament, with a view toinfluencing the votes of the members, is a high crime and misdemeanor, derogatory to the honor of theCrown, a breach of the fundamental principles of Parliament and subversive to the Constitution of thiscountry." 69 Now observe that this represented the spirit of English liberty one hundred and twenty-fouryears ago under George III, whose tyranny was the bugaboo of the makers of the Constitution, themost powerful King in England during the eighteenth century, and perhaps it would not be anexaggeration to say the most powerful King of England for the last two hundred years; yet George III,in all his power, was thus reprimanded.To-day usurpation has become so common upon the part of the President that we think little of it, yetan interference by the Kaiser with the action of the Reichstag, even when it is done indirectly, createswidespread indignation. Before the opening of the sittings of the Reichstag, the court chaplain preachesa sermon in the chapel of the imperial palace before the members of the Reichstag and the GermanEmperor. Dr. Faber, who now occupies that position, in preaching the usual sermon before the recentopening of the chamber, said: "The Reichstag ought to consist entirely of loyal Deputies who arelooking to and following the Kaiser with perfect faith, casting aside all doubt and all questionings. Ifwe had such a Reichstag we could safely leave the control of our destinies to God and the Emperor."6869

MacMaster, History of the People of the United States, p. 105.

John Fiske, The Critical Period of American History, p. 43

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These words are said to have created almost a revolution in Berlin. The members of the Reichstagindignantly resented such teachings. But while Congress is in session, our newspapers each day givemuch space to describing how the President is guiding the Senate, championing the rights of thepeople, how the Senate is defiant, how the President insists upon the recognition of the people's rights,and the play goes on, and the American people seem oblivious to the portentous meaning of suchusurpations of power.States prompt to remedy evils in comparison with CongressMr. Root assumed, in his speech before the Pennsylvania Society, that the people of the states areneglecting to perform their duties. He tells us that "the instinct of self-government among the people ofthe United States is too strong to permit them long to respect anyone's right to exercise a power whichhe fails to exercise," and "if the states fail to furnish it in due measure, sooner or later constructions ofthe Constitution will be found to vest the power where it will be exercised in the nationalgovernment." This assumption is without foundation. The states have long exercised their powers withmuch greater vigor than has the national government. Thirty of the states and territories of the Unionhad established commissions or passed laws to regulate the railroads, before Congress in 1887 passedthe Inter-State Commerce Law, establishing the Inter-State Commerce Commission. Years of agitationwere required before Congress passed the law allowing the creation of the Inter-State CommerceCommission, and then it was the Granger movement, from 1871 to 1887, in the Northwestern States,which finally brought about its passage. 70 For many years past the regulation of railroads by StateRailway Commissions has been frequently reviewed in the United States Supreme Court. 71The state governments are much better adapted than the national government for the enforcement oflaws regulating railway rates. The legislatures of the several states have original power to pass all lawsaffecting state interests, with no limitations, except those imposed upon their action by their respectiveconstitutions, while the United States government has only the powers delegated to it by the states. TheFederal courts have no criminal jurisdiction at common law, their criminal law is technical, and thereare great difficulties in those courts in enforcing the statutes punishing crimes. The difficulty withenforcing railway rate bills and regulations of commerce in state courts has been found in the fact thatwhenever an attempt was made the United States Courts interposed upon the plea that they affectedInterstate Commerce. If the United States government would relinquish this right, the state courtscould much more easily protect their people from the injustice of outrageous rates on the part of therailways.That the states have exhibited diligence in attempting to control the rates of freight and passengertraffic during the last year is apparent from the very fact that, during the winter and spring of 1907, theheads of railways were going in rapid succession to Washington to see the President, and to invoke, aswe are told by the newspapers, his aid for national rather than state control of railways. More than onecaptain of the railway industry has expressed the wish within the last year that the states might beprohibited from legislating even with reference to railways that lie wholly within their borders, butwhich are feeders of trunk lines. There is reason to believe that the President's activity and anxiety inthe matter is to take over the whole control of the railways of the country to the national governmentupon the urgent request of the railroad managers.70

Lloyd, Wealth against Commonwealth, p. 371.

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Another evidence that the states are more progressive than the national government is found in the factthat amendments are frequently made to state constitutions, and that many of their constitutionsprovide for a Constitutional Convention at the end of each period of twenty years. The Constitution ofthe United States has been amended but twice since the first ten amendments in 1789 until the stormyreconstruction days; and the strange feature of the case to-day is that neither the President nor any ofthe men who are urging the courts to construe the Constitution in such a manner as to enlarge thepowers of the national government, mention the conferring of such power upon the nationalgovernment by such amendments. In short, the people have the power to amend the Constitution, butinstead of procuring their action to that end the President and his advisers prefer to seek power byjudicial construction.Eight states, Ohio, Indiana, Illinois, Wisconsin, Nebraska, Pennsylvania, Missouri, and West Virginia,passed laws during the last winter fixing the passenger fare of their states, while the legislatures ofNew York and Virginia passed similar acts, and the governors of those states vetoed them. During thelast two years the legislature of the state of New York passed laws ordering a life insuranceinvestigation, the New Life Insurance Code, a law prohibiting corporations from contributing tocampaign funds and expenditures, tlie Eighty-cent Gas Bill for New York City, the Elsberg RapidTransit Bill, and the Public Utilities Bill. According to the report of Senator Thomas C. Platt of theUnited States Express Company to its stockholders in April, 1907, twelve of the twenty-six states inwhich the company was doing business in the year 1907 had passed statutes enlarging the powers ofthe railroad commissioners over the actions of his company. Insurance investigation along the lines ofthe Armstrong Committee Bills in New York has been passed or considered by the legislatures of atleast two thirds of the states of the Union during the last year. The only railroad under national control,the Union Pacific, had its Credit Mobilier; and the District of Columbia, controlled by a United Statescommission, has as corrupt government as can be found in the United States, with laws, saysCongressman McCall, for the creation of corporations which "would make a Jerseyman blush." TheState of New York and many of the other states of the Union have recently passed rigid laws requiringthe publication of all election expenses, but Congress is unable to pass a similar bill governing nationalelections.The state easily makes and unmakes its laws, and if it makes mistakes they can be soon corrected;while the national government, with all its checks and balances, its ponderous machinery, the liabilityof one department to represent one party and another department to represent another party, bringsabout changes only after years of delay. Ten years passed after the Presidential election of 1876 beforeCongress attempted to remedy the defects in the Constitution which made necessary the ElectoralCommission. Our rigid currency system, based upon national bonds, and our half dozen or moredifferent kinds of currency, have continued for fifty years, during all of which time students of financehave observed its inelastic condition, and the danger of the system in times of panic, when it isimpossible to increase the amount of currency until the panic is over, and still Congress has allowed itto continue with but slight changes. Even the Sherman Anti-Trust Law was not enforced against theNorthern Securities Company, until the governors of the states through which the Great Northern andthe Northern Pacific railways passed held a meeting to consider how to prevent the merger becomingeffective, and passed a resolution asking for the enforcement of the law. And then the nationalgovernment had to be reenforced in its action by the opinion of the Attorney-Generals of two statesthrough which the roads passed, declaring the combination illegal.

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Opinions of Hamilton and others on state rights

The national government, we have seen, has failed in many respects to perform its functions under theConstitution. What would be thought if the states attempted to perform these neglected functionsaccording to their standard of right and justice? The idea, supported by the President and others, thatthe national government should take over the affairs of the state governments is not only a violation ofthe Constitution of the United States, but it is absolutely impracticable. "No political dreamer," saidJohn Marshall, "would ever be wild enough to think of breaking down the lines which separate thestates and of compounding the American people into one common mass." 72James Wilson, upon whose teachings the President relies for his theory of inherent powers in thenational government, in the debates on the adoption of the Constitution before the PennsylvaniaConvention, said:"To support, with vigor, a single government over the whole extent of the United States would demanda system of the most unqualified and the most unremitted despotism." 73 In the convention to frame theConstitution, he said: "The state governments ought to be preserved. The freedom of the people, andtheir internal good police, depend on their existence in full vigor." 74 Hamilton, who more than anyother delegate believed in a strong central government, said in the New York Convention whilediscussing its adoption:"I insist that it never can be the interest or desire of the national legislature to destroy the stategovernments. It can derive no advantage from such an event; but, on the contrary, would lose anindispensable support, a necessary aid in executing the laws, and conveying the influence ofgovernment to the doors of the people. The Union is dependent on the will of the state governments forits chief magistrate, and for its Senate. The blow aimed at the members must give a fatal wound to thehead, and the destruction of the states must be at once a political suicide. Can the national governmentbe guilty of this madness?" 75The United States Supreme Court is not only under a high obligation not to deprive the states of theirreserved rights, but it has again and again declared that its obligation requires it to protect those rightsas sacredly as it would protect the rights delegated by the states to the national government. ChiefJustice Chase, speaking for the Court, said: "It may be not unreasonably said that the preservation ofthe states and the maintenance of their governments are as much within the design and care of theConstitution as the preservation of the Union and the maintenance of the national government. TheConstitution, in all its provisions, looks to an indestructible Union composed of indestructible states." 76Mr. Justice Miller, in his work on the Constitution, prepared after his retirement from that court, said:"In my opinion the just and equal observance of the rights of the states and of the general governmentas denned by the present Constitution, is as necessary to the permanent prosperity of our country and toits existence for another century, as it has been for the one whose close we are now celebrating."77

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The states, in delegating a portion of their powers to the national government, did not create an arbiterof their own selection to guard their reserved rights. Although the states must rely entirely upon theimpartiality and justice of the United States Supreme Court for the protection of their reserved rights,the members of that Court are appointed by the President with the consent of the Senate. The SupremeCourt, in its most recent decision, 78 supports the states by declaring that the national government hasno legislative powers affecting the nation as a whole except those enumerated in the grant of powers;and that the tenth Amendment to the Constitution, reserving all powers to the states not expresslygranted to the nation nor prohibited to the states, "is not to be shorn of its meaning by any narrow ortechnical construction, but is to be considered fairly and liberally so as to give effect to its scope andmeaning."It would unduly extend the discussion in this chapter to fully enumerate the many attempts on the partof the President during the last three years "to increase the power of the Federal Government throughexecutive action" Some of these usurpations have been carried on through the heads of departmentsresponsible to him for their action. A few only of the numerous usurpations will be mentioned.Executive pensionA bill was introduced into the House of Representatives in the winter of 1904 by Mr. Sulloway, amember of the House from the State of New Hampshire, which proposed that any person who hadserved ninety days in the army or in the navy during the war of the Rebellion, and who had reached theage of sixty-two years, should become entitled to a pension of $8 a month; that everyone who hadbecome sixty-six years of age should be entitled to $10 a month, and everyone who had reached theage of seventy years should be entitled to a pension at the rate of $12 a month. This measure the Housedeclined, or at least failed to enact, whereupon the Secretary of the Interior, by an order dated March15, 1904, decreed that its terms should nevertheless govern the Pension Office, and millions of dollarshave been paid out of the Treasury without any other warrant of authority than this order or decree ofthe Interior Department. Five hundred years before the adoption of our Constitution it was the law ofEngland that the Commons had the exclusive right to originate money bills and to determine thepurposes for which moneys appropriated should be used, and the king could not use the public moneysexcept they were expressly appropriated by the Commons for a specific purpose. In 1640 the House ofCommons declared:"We have had uninterrupted possession of this privilege (the privilege of the undisputed control overthe taxation and finances of the country) ever since the year 1407, confirmed by a multitude ofprecedents both before and after, not shaken by one precedent for these three hundred years." 79 For anattempted violation of this right of the Commons, Charles I was sent to the scaffold. In 1678 the Houseof Commons declared that "it is the undoubted and sole right of the Commons to direct, limit, andappoint, in such Bills, the ends, purposes, considerations, conditions, limitations, and qualifications ofsuch grants." 80"All bills for raising revenue shall originate in the House of Representatives," says the Constitution;and power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for thecommon defense and general welfare of the United States," is given to Congress. Now it is to be78

Kansas v. Colorado, 206 U. S., 89, 90, 91 of opinion.

Stead, Peers or People, p. 28.80Stead. Peers or People, p. 29.79

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observed that a pension bill to provide for particular classes of persons had been introduced intoCongress, and Congress had either declined or had failed to enact the law. "A minister," says Mr.Lecky, "who has asked and been refused the sanction of Parliament for a particular policy, and whothen proceeds to carry out that policy by other means without parliamentary sanction, may be acting ina way that is strictly legal, but he is straining the principles of constitutional government."1 Now wehave here a case of an executive officer who took from the Treasury of the United States millions ofdollars and appropriated them to a purpose contemplated by this rejected law, without any law orwarrant whatever from Congress. It is true that when the question was raised of his right to thus drawmoney from the Treasury of the United States without a law authorizing it, he declared that he wasentitled to use the money under a prior statute. But he had been administering that same statute foryears upon a totally different interpretation, and only resorted to the new interpretation when theproposed law of Mr. Sulloway was not passed by the Congress.Collection of customs duties in San DomingoAbout February 1, 1905, the President of the United States agreed with the Dominican Government ona treaty or a convention whereby a Protectorate of the United States over San Domingo was created,and San Domingo agreed to permit a receiver of its customs duties, selected by the United States, tocollect the customs and divide the collections. Forty-five per cent was to go to the support of theDominican Government, and the remaining sum was to be applied by the United States, or its receiver,in payment of the foreign indebtedness of San Domingo. A considerable portion of this indebtednesswas held by English bondholders. They had about 750,000 of bonds for which the Republic of SanDomingo had received all told 38,000. 1 Lecky, Democracy and Liberty, vol. ii, p. 57.This treaty with San Domingo was sent to the United States Senate for confirmation. A majority of theCommittee on Foreign Relations were unfavorable to the treaty, and it was not reported to the Senate.With the treaty before the Committee on Foreign Relations, and no action having been taken upon it,the President, on April 1, 1905, entered into an agreement or protocol with the government of SanDomingo embodying practically the same provisions as existed in the original rejected treaty. Theoriginal treaty provided that the United States was to grant to the Dominican government, aside fromthe collection of its revenues, "such other assistance as the former (the government of the UnitedStates) may deem proper to restore the credit, preserve the order, increase the efficiency of the civiladministration, and advance the material progress and welfare of the Dominican Republic." If a treatycontaining this provision had been confirmed by the Senate, the President would have been left thediscretion to take any steps which he deemed proper "to restore the credit, preserve the order, increasethe efficiency of the civil administration " of San Domingo, and advance its material progress andwelfare. It is the exercise of just such discretionary powers that turns a constitutional officer into adictator.The government of the United States, without any treaty, through its receiver, actually collected thecustomhouse duties of San Domingo from April 1, 1905, until the year 1907, when at last, after severalmodifications, the treaty was finally approved by the Senate. Under what clause of the Constitution didthe President receive the right to appoint a receiver, take possession of the customhouse of SanDomingo, collect customs and turn a portion of the amount collected over to the foreign creditors ofSan Domingo? As executive he can enforce only existing laws. Without any authority whatever, butstill in the name of the United States, he, as its President, appointed a receiver of these customs, andbecame the collector for foreign nations for two years without one syllable of law to justify his action.There is not a precedent for such action in the history of any modern constitutional country. There isFederal UsurpationElectronically published by Family Guardian Fellowship

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no power given to the President from which the right to do this can be possibly inferred. He had a rightto make a treaty with San Domingo with the consent of the Senate, but he had no right to act upon anyproposed treaty until it had become a treaty, and his action during the whole period of two years was ausurpation of power. If, in a time of peace with no crisis or emergency at hand, the President canexercise such powers, what will such a President do when a great crisis arises and violent passions areexcited as in the time of our Civil War?The seizure of PanamaAn act of Congress passed June 28, 1902, authorized the President of the United States to obtain bytreaty control of the isthmus or territory known as Panama, a separate state of the Republic ofColombia, for the purpose of building a ship canal across it between the Atlantic and Pacific Oceans.This act provided that if the President should be unable to do so within a reasonable time and uponreasonable terms, that then he should proceed to acquire the necessary territory from Costa Rica andNicaragua. This act appropriated $10,000,000 to be used by the President toward the undertaking. Italso authorized him to pay for the canal $40,000,000.Pursuant to this authority. Secretary Hay entered into a treaty with Colombia, which was ratified by theSenate on March 17, 1903. The Congress of the Republic of Colombia, when this treaty was broughtbefore them, refused to ratify it upon the ground that they could not alienate a portion of their nationaldomain without an amendment to their constitution. Congress was not in session when this treaty wasrejected by the Colombian Government. The representatives of the old Panama Canal Company and ofthe new Panama Canal Company were in New York City, watching closely the action of the Congressof Colombia; and it scarcely had rejected the treaty before a scheme was concocted in a law office inNew York City to raise a sham revolution in Panama, to protect it by United States troops, and to makea new republic of Panama with which to deal. On November 2, 1903, the gunboat Nashville, underdirections of the Navy Department, reached the Isthmus, and on the same day an order was sent fromthe Navy Department to the Nashville, the Boston, and the Dixie, containing these instructions:"Prevent landing of any armed force with hostile intent at any point within fifty miles of Panama.Government forces reported approaching the Isthmus in vessels. Prevent landing if in your judgmentlanding would precipitate conflict."Our rights in Panama were procured by a treaty on December 12, 1846, between our own governmentand New Granada, to whose rights, under this treaty, the Colombian Republic had succeeded. In thattreaty we guaranteed to New Granada the rights of sovereignty and property which she possessed inPanama and agreed that "if the complete and absolute sovereignty and independence (of New Granada)should ever be assailed by any power at home or abroad, the United States will be ready, cooperatingwith the Government and their ally, to defend them." But when Panama, a state of Colombia, sought tosecede, we, who had fought a four years' war to establish the doctrine that a state had no right tosecede, sent our gunboats to the shores of a friendly country which we had agreed to protect if it wasever assailed by any power at home or abroad and to always recognize its sovereignty, we, in such acrisis, sent our gunboats to aid in dismembering it.Now observe the hand of preparation. On November 2d our gunboats had reached Panama. On the nextday Assistant Secretary Loomis, of the State Department, cabled from Washington to the Consul of theUnited States at Panama: "Uprising on isthmus reported. Keep department promptly and fullyinformed." The uprising which was contemplated, however, had not come off on time and the ConsulGeneral at Panama cabled this reply: "No uprising yet; reported there will be to-night." According toFederal UsurpationElectronically published by Family Guardian Fellowship

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the plan the insurrection did come off at night pursuant to the telegram. In this way a valuable portionof a friendly state was wrested from the Republic of Colombia. Our gunboats and troops held at baythe forces sent by Colombia to suppress this insurrection, and this was all done under the direction ofthe President or his Secretary. Suppose Great Britain, before the commencement of the Rebellion, hadsent her war vessels to our shores, not only inciting the South to an insurrection but aiding- them tocarry it out, what would we have thought of the justice of such an action? We would have met such astep with force and fought Great Britain, as well as the South, in the resentment of such an insult.The President in all this acted in disregard of the act of Congress which directed him, in case he couldnot obtain control of the Isthmus of Panama in a reasonable time and upon reasonable terms, then toacquire the necessary territory for the canal from Costa Rica and Nicaragua. If the demands of a highcivilization require that we appropriate Panama to our own uses, will not that high civilization alsodemand that we pay Colombia for the part of her territory which we have deliberately taken withoutgiving her any return whatever? How does this unwarrantable seizure of Panama differ materially fromthe annexation of Texas? the expedition of General Lopez against Cuba in 1851? the spirit of theshameless Ostend Manifesto? the countenance of the government to the filibustering expedition ofWilliam Walker to Nicaragua in 1857? or the later attempts to acquire Cuba in 1851-59? And wecontinue as we did in these other shameless attacks upon the rights of the weak, to measure honor byinclination and justice by expediency.The discharge of negro troops without trial by court-martialAbout midnight of August 13 and 14, 1906, shots were fired in the village of Brownsville, Texas,where the Twenty-fifth Infantry, composed of negro troops, were on duty in Fort Brown. A policeofficer was killed, and when the attention of the government was called to the suspicion that theseshots had been fired by members of the Infantry, Major Blocksom, of the United States army, was sentto Brownsville to investigate. He took the .statements of twenty-one witnesses, eight only of whomclaimed to be eyewitnesses of the matter. Major Blocksom made his report to his superior, GeneralGarlington, of the regular army, that the soldiers of the Twenty-fifth Infantry he had interrogated haddenied any knowledge whatever of the shooting or of the absence of their comrades from the fort onthat occasion.When this report came to the attention of the President he sent General Garlington to Fort Reno, wherethe members of the Infantry were encamped, and General Garlington there informed the soldiers thatunless they frankly and fully disclosed any knowledge which they had as to who of their comrades hadcommitted the offense, that they would be discharged from the army and debarred from ever againentering the service. Even under this threat all the soldiers denied having anything to do with theshooting or any knowledge whatever of who did it. General Garlington made his report to the Presidentand recommended that Companies B, C, and D of the Twenty-fifth Infantry, comprising 167 soldiersand officers, be discharged without honor and be forever debarred from enlisting in the army and navyof the United States, as well as from employment in any civil capacity by the Government.Upon the back of this report the President wrote: "Let this recommendation be executed." GeneralGarlington, in his report, said: "In making this recommendation I recognize the fact that a number ofmen who have no direct knowledge as to the identity of the men of the Twenty-fifth Infantry whoactually fired the shots on the night of August 13, 1906, will incur this extreme penalty."

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It is conceded that only a small number of the soldiers had anything to do with the affray. No one ofthese 167 men were summoned before a court-martial or given any opportunity whatever to examineor cross-examine witnesses, nor were they represented by counsel, nor did they have a legal hearing inany way whatever. Twelve men, consisting of the Sergeant of the Guard, the men on guard, and othernoncommissioned officers in charge of the quarters, the guns, and the gun racks on the night of August13, and who must have known of the absence from the fort of a part of the three companies, if theywere absent, and must have been implicated to some extent in the matter if it occurred, were arrestedby the state authorities. An investigation covering three weeks before the grand jury at Brownsvilletook place, and they were finally dismissed by the grand jury on the ground that there was no evidencewhatever upon which to convict them. It is elementary and fundamental law that in times of peace asoldier or officer accused of crime who denies its commission cannot be dismissed without honor anddeprived of the right of reenlistment and the right to hold civil office under the government of theUnitedStates, without charges being formulated and a hearing given him before a court-martial. The Presidenthad not the slightest legal right to discharge these men and inflict upon them the penalty which wasinflicted without such a hearing.The President is the Commander in Chief of the army and navy of the United States, but Congress isgiven the power to make rules for the government and regulation of the land and naval forces, andCongress, in 1895, prescribed the conditions under which a soldier in the regular army might bedischarged without honor. The Articles of War then enacted by Congress under sixty-one separateprovisions prescribes the different offenses for which a soldier may be brought before a court-martialand punished, and the sixty-second provision of these Articles of War provides that all other casesmust be punished as a court-martial may direct. By the advice of the Department of War, chargesagainst the twelve men whom the Texan authorities sought to indict were prepared under this sixtysecond section of the Articles of War, with specifications and lists of witnesses, and apparently withthe intent to bring each of the twelve before a court-martial. But because the President had exercisedhis alleged power to discharge, the apparent inconsistency of such an arraignment with his act broughtthe matter to an end without a court-martial.Notwithstanding all these provisions the President, without a hearing, discharged these men withouthonor and debarred them from reenlistment or from holding any civil office under the United States.General Ains-worth, the Military Secretary of the War Department, said in the report which he made tothe President: "A protracted examination of the official records has thus far resulted in the failure todiscover a precedent in the Regular Army for the discharge of these members of three companies ofthe Twenty-fifth Infantry who were present on the night of August 13, 1906, when an affray in the cityof Brownsville took place." It would seem that the President knew that he had no right to dischargethese men without their conviction by a court-martial, for in March, 1903, to a question relative to theretention in the army of a man accused of murder, he said: "In this matter, even if this man is amurderer, I am helpless. I have absolutely no power to dismiss anybody from the army in time ofpeace." 81 The President is not above the law; he is the sworn servant of the law. His act in this casewas known to every citizen of the land. There is no greater menace to our country to-day than theprevalent disregard of the orderly enforcement of the law. Between the years 1885 and 1904 inclusive,2,286 executions for murder, after trials and convictions, have taken place. During the same period2,917 suspected men, mostly negroes, have been lynched, and a considerable number of them were81

North American Review, January 18, 1907, p. 217.

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publicly burned and tortured. When the President, contrary to law, deprives 167 men of their livelihoodand their right to employment by the national government, he sets a dangerous example to everyperson in the land.Like usurpations have been numerous. Let us, however, observe one more. The constructive recess ofthree years ago was conceived by the President to permit the retention in office of certain officials towhom it was believed the Senate was opposed. This recess lasted only from the falling of the gavel inthe hands of the President of the Senate, marking the close of the first session of the Fifty-eighthCongress, and the rapping to order which immediately followed the opening of the second session ofthe Fifty-eighth Congress. And it is to be remembered that the House of Representatives attempted torecognize this as a real recess by voting to themselves $190,000 mileage for attendance on the secondsession of the Fifty-eighth Congress.The justification of usurpationWhat excuses are offered for these usurpations? Simply that the President thought such usurpationswere for the welfare of the American people. Good intentions never justify usurpations of law.Tiberius Gracchus, conscious that his tribuneship had been of great value to the Roman people, andbelieving that the tribune who would succeed him could not be relied on to carry on his policy, offeredhimself, notwithstanding the law forbade it, to the Comitia for reflection. He reasoned just as ourPresident reasons, that his tribuneship had brought great blessings to the Roman people; that the poorneeded his protection; that the interests of the country demanded his reflection, and that to break thelaw for a good cause could be atoned for by the fruits of his administration for the second year. Nobleas were his purposes, beneficial as might have been his rule, his illegal act resulted in armed resistance,and he and three hundred of his friends were killed at the polls and their bodies flung into the Tiber.The Constitution was given us as a guide of our action. It is beyond the ingenuity of man to invent ajustification for its violation. The example of a President obeying its mandates would contribute athousandfold more to the general good than ever can come from any supposed benefit in its violation.The unwritten law should preclude the President from dictating his successorWhen it was moved in the Constitutional Convention that a single person should act as the executive ofthe nation, a profound silence followed, continuing for several minutes, until Washington, thepresiding officer, asked what was the further pleasure of the Convention. In the conventions called forthe adoption of the Constitution in all of the Southern States and in Massachusetts and New York,much alarm was expressed at the powers of the President and the danger of his perpetuating himself inoffice. Little did the people at that time contemplate that such vast power would attach to the office byreason of the growth in size of our country, its rapid industrial advancement, and its enormous increasein wealth. The precedent of Washington, followed by his successors, of refusing to accept the officefor a third term, has made it unwise, if not practically impossible, for the President to seek it. But theall-sufficient reasons which preclude the President himself from seeking a third term, equally precludehis use of the great power of his office to bring about the nomination of any certain person as hissuccessor. Jackson, to his discredit, dictated his successor as arbitrarily as he settled the question of thenational bank. If it is permissible for the President to seek to control the nomination of his successor,then he can bring about the nomination in his party of the man he prefers, and thus perpetuate his rule,although he has ceased to act as President.

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The Roman law wisely provided that no one should be a candidate for the Consulship unless hepresented himself for the office from a private station in life. If the President is determined to select hissuccessor, he has only to appoint him to a cabinet position of great power, and to vest him withpatronage and influence, to make him an overmatch for any man aspiring to the office from privatelife. If the unwritten law of the land precludes a President from continuing in the office beyond twoterms, let us make it also the unwritten law that the occupant of that high office shall not use the almostomnipotent power which he holds from the people in any manner whatever to select his successor. Inshort, let the American people insist that the exalted office of the President shall lift him far above theuse of his power to place any man in the presidential chair, or to obstruct any man from seeking thatexalted position from the walks of private life.

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IV PATERNALISM AND IMPERIALISM

"The French government having assumed the place of Providence, it was natural that everyone shouldinvoke its aid in his individual necessities."DE TOCQUEVILLE."The mischief begins when, instead of calling forth the activity and powers of individuals and bodies,government substitutes its own activity for theirs; when, instead of informing, advising, and, uponoccasion, denouncing, it makes them work in fetters, or bids them stand aside and does their workinstead of them. The worth of a State, in the long run, is the worth of the individuals composing it."JOHN STUART MILL."Foreign politics recede into the background with the growth of civil and political freedom, while theyare the main prop of autocracies."ANON.

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CHAPTER IV PATERNALISM AND IMPERIALISM

The universal seeking of aid from an all-powerful President is a menace to libertyTHE public newspapers a few months ago told the people of the country that a delegation from theNew York Federation of Churches had that day called at the White House to lay before the Presidentthe facts about the waning of religious zeal and the decrease of church extension in New York. Theydesired the President's "aid toward arousing greater interest in religion." In the days of the birth of theConstitution the fathers lifted their thoughts to Heaven and to God for religious help, and they hardlyanticipated a time when the President, for whose election they were providing, would be looked to bythe American people for religious guidance. Noble Robert Collier was wont to tell the story of an oldclergyman in Scotland who, when the scorners gathered around the church while services were goingon, would leave the pulpit, catch the unrepentant sinners, and drag them before the altar of mercy.Perhaps the delegation from the New York Federation of Churches hoped that the President with his"big stick " would compel the people to attend church.The value of this simple and trifling incident is found in that it is a typical illustration of theunfortunate condition of our people. Labor Unions, Boards of Trade, National Banks, and like bodiesare constantly turning to the President of the United States, asking him to arbitrate strikes, coercecorporations, and deposit government surplus, and generally to carry on the domestic affairs of thestates. The present Secretary of the Treasury has deposited upward of $200,000,000 of the surplus ofthe government with the banks, issued $50,000,000 of three per cent certificates, and sold them to aidthe banks, under the law that they may be issued when necessary to meet public expenditures, and sold$50,000,000 of the Panama bonds in advance of the need of the money, in order to relieve the moneystringency. In the spring of 1907 we saw the strange spectacle of presidents of railways hastening toWashington to invoke the President to protect them from state legislation. A commission known as theKeep Commission recently has reported a plan to be submitted to Congress, providing that thegovernment shall compel all its employees to make provision out of their salaries for annuities afterretirement for age. The government on its side is to set aside, as part of the same fund, the sum of$725,000 for the first year, and this sum is to be increased during a period of thirty years, when thesystem is intended to be self-supporting. The maximum appropriation is to be $1,746,561. Wiser wordswere never spoken than those of President Cleveland that "it is not the business of a government tosupport its people, but of the people to support the government."The peculiar thing about the condition of our government to-day is that the President is supposed bythe people to determine everything. Shall a trust be prosecuted? Ask the President, not the AttorneyGeneral. Shall we have further legislation with reference to railways? Ask the President and notCongress. All the affairs of government must be determined upon the President's idea. It is simply apersonal matter with the President. In a healthy democratic republic, measures, not men, attract theattention of the people. But with us, the President, appointing so many officers, controlling the armyand, to a considerable extent, the navy, is, to use a vulgar phrase, in the center of the stage with all eyesupon him.In Switzerland, the most democratic government in the world, a President of the Confederation isreported as once saying that if anyone were to question ten Swiss, all of them would know whethertheir country was well governed or not, but that nine of them would not be able to give the name of the

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President, and the tenth, who might think he knew it, would be mistaken. 82 When will the Americanpeople learn that an all-powerful executive, constantly posing before them, toying gigantic schemes intheir sight, dazzling them with his power and the grandeur of his views, keeping their attention uponthe world's politics, using the navy to collect from the weaker and smaller countries their indebtednessto European countries, advising his own people upon their domestic and social questions, is a menaceto that liberty which never can continue unless it continues by reason of discussion of measures, notmen. By too much trust in government the people are ceasing to trust themselves. The state cannot aidmen without enfeebling their energies and imperiling their self-reliance. Such a condition goes on for acentury or so, and by and by the people, who gradually have been losing independence and selfinitiative, become an easy prey to the man on horseback.Now let us see how these lamentable conditions have been brought about. In more than 200 addressesand messages and communications to Congress, during the last six years, the President has ever beenholding before the people the one great theme the power, the ability, and the willingness of the chiefmagistrate and of the national government to care for all the wants of the people. There is no subject,from football to race suicide, from simplified spelling to Constitutional construction, within the wholescope of human knowledge which has not been exploited more or less and held up to the people inthese speeches and messages.At Sioux Falls, on April 6, 1903, the President tells his audience ( that the Department of Agriculturedevotes its whole energy to working for the welfare of farmers and stock growers," and then heenumerates the various ways in which the Department is working-for the benefit of the farmers of thecountry. It was proposed in the Constitutional Convention to appoint a Secretary of Domestic Affairswho should attend to the study of agriculture and manufactures, and the opening of roads, but this wasnot approved. 83 It was also proposed to establish agricultural colleges to promote agriculture, and thisproposition was voted down. Notwithstanding this, hundreds of millions of the people's money havebeen used for the ostensible purpose of promoting agriculture. For years Congress has been purchasingseeds at ordinary seed stores and scattering them among the farmers of the country. During PresidentCleveland's second administration, Stirling G. Morton, Secretary of the Department of Agriculture,attempted to put a stop to this, and a representative from Louisiana arose in the House and declaredthat the distribution of seed was the only relation left him with his constituents, and now the Secretaryof Agriculture was about to destroy that relationship.In the President's message of December, 1906, he assures the people that "much is now being done forthe States of the Rocky Mountains and great plains through the development of the national policy ofirrigation and forest preservation." In a recent case 84 it is distinctly held that Congress has no power todevote the public money for carrying on irrigation in the states, but that possibly the power exists todevote the public money to the irrigation of public lands in the territories. The irrigation laws, thegeological survey, the ten or fifteen divisions of the Agricultural Department given over toinvestigations of all kinds, using up hundreds of millions of dollars of the people's money, induce thepeople to look to the national government. These lavish appropriations are made with this expresspurpose in view. Every appropriation is a fresh draft from the exhaustless resources of a paternalgovernment, but not a dollar was ever yet spent by the government which was not taken out of thepockets of the people. The appropriations of Congress in the year 1898 were $485,002,044; in 1906they were $820,184,624, nearly double the amount for 1898; and in 1907 they were about a billion82

Lowell, Government and Parties in Cont. Europe, vol. II, p. 327.

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dollars. In the year 1907 there was appropriated by the River and Harbor Bill alone, $83,816,138, asum larger than the total cost of all government in the United States in any single year prior to 1860.In the President's message in December, 1906, he devoted much attention to technical and industrialtraining, treating the whole matter as though the national government had power to establish schools inthe different states, to instruct carpenters, blacksmiths, mechanics, textile workers, watchmakers, andall the members of the several industries of the country. Mr. Wadsworth, Chairman of the Committeeon Agriculture, in the last Congress commented at length upon the tendency of the Department ofAgriculture to usurp the powers of the state governments. The occasion of his speech was theconsideration of what was known as the Nelson Amendment increasing the agricultural appropriations.Mr. Wadsworth said that the agricultural appropriations as a whole presented a serious menace to localcontrol of education; that they included bills to extend aid to state normal schools, agricultural schools,mechanical schools, and city high schools; and that if appropriations were made for such purposes byand by they would be extended to the grade schools and then "you will have federal control andsupervision of your schools." Mr. Tawney, Chairman of the Committee on Appropriations, said: "If wecontinue this system of paternalism much longer it will not be long until the Congress will be swept offits feet and called on to account for from $25,000,000 to $50,000,000 annually for the construction andmaintenance of good roads."Governmental favors to farmers and bankers and their effect upon the peopleThe late Secretary of the Treasury, Leslie M. Shaw, for the purpose of aiding the national banks,allowed bonds other than government bonds as prescribed by the statute to be used to securecirculation; purchased bonds in advance of their becoming due with the intent of easing the moneymarket; and deposited the moneys received by the government for internal revenue, to the amount of$20,000,000, with the banks in the east and in the west, after it had been taken into the Treasury vaults,a power never exercised before by any Secretary. He also deposited the government moneys withimporting banks, during the transit of gold from London, Paris, Berlin, and Amsterdam, to save thecost of interest in transit; offered government deposits to banks which would buy the Panama Canalbonds at two per cent; deposited the Treasury surplus from time to time in different banks to ease themoney market; advised that the matter of the amount of the reserves required by law to be held in thenational banks be left for the Secretary of the Treasury to determine; and finally announced that if$100,000,000 were given him as Secretary of the Treasury to be deposited with the banks orwithdrawn as he might deem expedient, and that if he also was clothed with authority over the reservesof the banks and power to direct the circulation of the national banks, he could prevent financial crisesin the United States and all Europe, thus becoming the saviour of Europe as well as of the UnitedStates. The President, in commendation of the services of his Secretary of the Treasury, at the time ofhis resignation, wrote him: "People tend to forget year by year that the Secretary of the Treasury standsbetween them and business disaster. This report of yours shows how every year some crisis hasoccurred which might have had a most serious effect if it had not been met just as you have met it."These are only a few of the attempts of the government to direct the attention of the people to it for theremedy of every evil. The Treasury of the United States has been opened wide by distributing moneyinto every part of the country for purposes with which the national government has nothing to do, withthe intention of directing the attention of the people to the all-wise providence of Congress and of theExecutive. A hundred years ago our people asked no favors from government, but only for a fair,square deal, each man confident in his ability to win by his own brain and his own hand. To-day, underthis paternal rule, everybody is in the habit of looking to the President and Congress for relief fromFederal UsurpationElectronically published by Family Guardian Fellowship

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every evil. Thus residents in the southern states recently sent a request to the Secretary of theDepartment of Agriculture that he rid them of the pest of the boll weevil, while the men of oldMassachusetts, wherein personal independence in revolutionary days was most developed, send toWashington for help to drive the brown-tailed or gypsy moth from the borders of their State. Just as atRome, the leading men desiring the plaudits of the people provided them with a circus, just as CaiusGracchus proposed a provision that the grain at Rome should become state property, and that thegovernment should sell wheat to the people at a ridiculously low price, so to-day President Rooseveltand some of his predecessors have used vast sums of money collected from the people throughprotective tariffs, internal revenue, and other means to bestow bounties here and there all over the land,and thus attach the people of the different states to the all-powerful, all-bounteous providential nationalgovernment.Now such government is destructive of public virtue. The function of democracy is not alone to makegovernment good, but to make men strong by intensifying their individual responsibility. The beliefthat the President or government has the power to make everybody comfortable or happy, and theinclination of the people to depend upon our government as the people of France and Germany dependupon theirs, is a tendency destructive of liberty and individual initiative. Paternalism is the dry rot ofgovernment, and as surely brings paralysis through all its members as the law of gravitation controlsthe universe.Statuts considered a panacea for evilsBut even these are not the worst evils of paternalism. The greatest curse which it has brought upon thecountry is its teaching that all evils are political in nature, and that it is within the scope of the state todestroy the social miseries which inevitably exist. We are teaching the people that a law of Congress isa sovereign specific for every evil. The President of the United States is constantly calling to theattention of the people in his messages and speeches the benefits to be derived from new laws, yetevery student of history knows that better conditions cannot be brought about except through a changein the personal character of the people and their exercise of individual virtue and vigor. The exercise ofarbitrary power by the President is bad because arbitrary power, whether it be political or industrial,has always had but one tendency, and that is to make good citizens bad citizens. The citizens who arecontented to rely upon a paternal government never rise through one emancipation after another into ahigher liberty. Social evolution progresses actually with the importance of the citizen above the state,and decreases exactly in the proportion of the importance of the state over the citizen. A gooddespotism is an absolutely false idea. The more civilized the country, the more noxious such agovernment.The people must fight their own battles for better conditions. Every time they call upon that greatcentral deity, the Government, to fight an evil, they surrender their God-given right to grow strong byfighting it themselves. By and by, if recent tendencies continue, they will surrender all their duties andall their rights, so dearly bought, to their rulers. By and by the government, like that of Germany, willdog the citizen's footsteps at every turn, provide him with old-age pensions, recompense him for allinjuries received through negligence, destroy his manhood while alive, and bury him when dead. Letus go on at the same rate we have been during the last five years, and the sole idea of our country willbe a divinely inspired President whose authority, as guardian of the people, insures their generalfelicity. This evolution will consist in erecting an absolutely central power over the ruins of state andlocal life. All will be looking to Congress more and more for the righting of wrongs, for the control ofcommerce and industry, and for the curbing of the predatory railways and trusts. The command of theFederal UsurpationElectronically published by Family Guardian Fellowship

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people to the President will be the command to the Roman dictator to take care that the state receivesno harm, leaving the means and the methods entirely to his wise discretion. Then when evil conditionscome, as they came recently to the wine growers in the south of France, through perfectly naturalcauses, our people in vain will turn their faces to the government to relieve them even as the Frenchpeasants sought government aid, and then rose in arms against a government that could find no cure fortheir ills.Race suicide, a result of tariffs and trustsUpon no subject has the President spoken with so much power as upon the decadence which racesuicide is bringing upon the country. The conditions which the President laments are a menace to ournational greatness, but no amount of severe language against married people who have no children willavail. Better a hundred times to find the reasons for race suicide and remove them. If the Presidentdoes not know what those reasons are he has not carefully reflected upon existing conditions. The highprice of the necessaries of life, whereby a large part of our people are reduced to a condition where thedaily wage barely supports the family, more than any other cause brings the condition which thePresident so wisely laments. The masses of men will be what their circumstances make them. If thepresent prices of the necessaries of life and of rent continue, the average laboring man with a familywill be unable from his wages to support his family and to lay aside a dollar for his old age. He paysfor the rent of the tenement in which he lives from twenty-five to fifty per cent more than he would payfor it were it not for the customs duties upon iron and steel, wood, nails, glass, cement, and everythingthat goes into the making of that tenement, whereby the domestic manufacturer is protected fromforeign trade and allowed to deprive the poor man of his scanty earnings.The tariff schedules of to-day carry duty on more than 4,000 articles. Nearly every duty on these 4,000articles permits the domestic producer of the same article to impose a higher price for his product, andthat price eventually falls in greater part upon the shoulders of the poor and deters them from marriageand childbirth. Superintendent Maxwell, of the New York City schools, two or three years ago said:"There are thousands of children in our city schools who cannot learn because they are hungry." Andthey are hungry, in part at least, because of that protective tariff which allows the wealth of the countryto make every poor laboring man in this land pay tribute to increase its wealth. In 1,000 villages andcities, from one end of this country to the other, the wife of the poor man will be found in the market,the hard earnings of her husband in her gnarled hands, purchasing the necessaries of life; and fromevery dollar's worth she buys, she is obliged, because of the tariff, to make a personal contribution tomen who already have their millions. In the fifty years since the end of the Civil War, the protectivetariff has brought to the hands of a few thousand manufacturers more wealth than was acquired by theFrench nobles through privilege in five hundred years prior to the revolution. In the President'sJamestown speech he said: "We combat every tendency toward reducing the people toward economicservitude." The way to combat it effectually is to remove the tariff which reduces the poor to economicservitude to the trusts. So reduced have the people become, that one has but to observe their conditionclosely each day in the crowded cars and thoroughfares of New York City to see that they are losingtheir faith in the opportunity to improve their condition and their courage to battle against the odds oflife. Vitiated air, bad sanitation, and squalid homes drive them forth to the cheerfulness of the saloon,and, by and by, if a crisis comes, impel them to the commission of crimes.A few months ago the J. & P. Coats Co., Ltd., thread manufacturers, declared a large dividend upontheir capital of $15,000,000. This is a foreign corporation owned at Paisley, Scotland, but doingbusiness in this country to take advantage of our tariff. Its stock, which is $50 per share, had a marketFederal UsurpationElectronically published by Family Guardian Fellowship

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value of $677.50 at the time this dividend was declared. The tariff duty upon sewing thread is six centsper dozen spools of 100 yards each. Race suicide, as a deplorable condition in our country to-day, isexplained by such instances as the sewing woman; robbed by the high price of the necessaries of life,with a burden upon the cost of her thread, driven by desperate competition, she succumbs under all thisstress and strain. This increased cost of living is a merciless drain upon the whole body of poor people.Robbed of their earnings by the monopolist, the unmarried do not marry, and the married do not bringchildren into the world, and the problem exists. Alexander Hamilton well said: "Give a man powerover my subsistence and he has power over the whole of my moral being." Government to-day gives toa few thousands the power over the subsistence of every one of the 20,000 post-office clerks whosesalaries run from $600 to $1,000 a year, of all other clerks in the employ of the government on fixedsalaries, and of every one of the millions of clerks upon fixed salaries in stores and business concernsin the entire country. And the result is race suicide, because we have reached a time in this countrywhen a great portion of the people are unable to support a considerable family in the style they desire.Yet the President, who deplores race suicide, a few years ago said: "Our experience as a people in thepast has certainly not shown us that we could afford in this matter (of the tariff) to follow thoseprofessional counselors who have confined themselves to study in the closet, for the actual working ofthe tariff has emphatically contradicted their theories." Of one of those professional counselors whoconfined himself, in great part at least, to study "in the closet," Mr. Buckle, in his worldwide known"History of Civilization in England," speaking of the "Wealth of Nations," and summing up hisestimate of the book, says: "Well may it be said of Adam Smith, and said, too, without fear ofcontradiction, that this solitary Scotchman has, by the publication of one single work, contributed moretoward the happiness of man than has been effected by the united abilities of all the statesmen andlegislators of whom history has preserved an authentic account." With the growth of the protectivetariff, those who have watched public affairs with care can observe the waning of the old-timedemocratic simplicity in government, and can see its place being taken by rapid centralization of powerand growth of paternalism in the general government. High protection, militarism, and paternalismhave been advancing hand in hand since the Civil War.Immediately after the announcement of the nomination of Mr. McKinley at the Republican NationalConvention at St. Louis, in 1896, a delegate raised upon the point of a flagstaff a cocked hat, such asone associates with portraits of Napoleon, and the Convention cheered to the echo this Napoleonicemblem. Little did the delegates think that during the administration of Mr. McKinley would occur awar and the acquisition of territory, containing over 10,000,000 of people, in a distant part of theworld, and that changes would come in the form of our government, leading to new habits, modes ofthought, and conditions of life among the people which are inconsistent with a free democraticrepublic. We need spend little time in discussing the facts and conditions of our getting possession ofour different colonies. We have them. and it is well for us now to study how these new conditions willaffect our home institutions.Effect of imperialism upon home institutionsA republican form of government based upon a written constitution cannot exist where the republic isthe sovereign of widely scattered colonies. The tendencies to usurpation from imperialism are so greatas necessarily to break down the guarantees to liberty found in the written Constitution. The PhilippineIslands became the property of the United States April 11, 1899, and it was 1901 before Congress tookthem into its charge. During all this period these Islands were governed by the President simply as theCzar might govern Siberia, or as the German Emperor did govern Alsace-Lorraine for some years afterFederal UsurpationElectronically published by Family Guardian Fellowship

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the Franco-German war. He not only executed the laws, but he made new ones. Without any authorityfrom Congress he sent to the Philippines a Commission of five men who legislated for them andreported their laws to the President through the Secretary of War. Before the transfer by the treaty thePresident governed as military commander, but after the Philippines had become domestic territory, heruled without any authority whatever. Even if Congress had attempted to delegate the power to thePresident to govern the Philippines, there is grave doubt if any power exists under the Constitution topermanently rule colonies as subject people.Even after Congress assumed charge of the Philippines the government continued a mere despotism.Shortly after Mr. Root resigned his position as Secretary of War, and in the early part of 1904, at abanquet of the New York University Law School, he said: "It has been my province during the lastfour years and a half to deal with arbitrary government. It has been necessary for me not only to makelaws and pronounce judgment without any occasion for discussion except in as far as I wouldchoose to weigh the question involved in my own mind affecting 10,000,000 people. And not onlyto make laws and pronounce judgment, but to execute judgment with overwhelming force and greatswiftness." Here Mr. Root well describes the government of the Czar, the government of Germany andBelgium in Central and South Africa, the government necessarily of all countries which rule subjectprovinces. How would our own people be ruled at home if they knew no more about their own affairsthan they know or care about the affairs of the Philippines?When it was known that the Treaty of Paris provided for the taking over of the Philippines at a cost of$20,000,000, many of those who were opposed to the treaty declared that the Philippines were of littlevalue and would be a curse to our country. The action, however, of our government was acclaimed bya considerable proportion of the people. We have invested in the Philippines up to the present time atleast $1,000,000,000. And now from every side we hear thoughtful men asking that we get rid of them,saying that they are a useless incumbrance, saying that our trade with them has not increased, and thatno benefits will come to the country from holding them. Senator Raynor, of Maryland, recentlyspeaking in New York, said: "The Philippines, I will guarantee, would not sell for a dollar and a half inthe market of the world. Who wants them?Where is the bidder? Not a nod of the head will you get from the nations of the world."The important question for the American people to-day, however, is the effect of our imperial systemupon our government. Sixty years ago William H. Seward declared the great principle that we couldnot live half slave and half free. With equal truth it can be said to-day that we cannot deprive thepeople of the Philippines or the people of our other colonies of their liberties, without the self-same actdestroying the safeguards of our own. Imperial aspirations draw, by obvious necessity, an imperialrule. As our government becomes imperial, foreign politics come to the front and the growth ofpolitical freedom among our people goes to the rear. He reads history to little purpose who does notfind in its teachings many illustrations of the truth that a free people cannot rule subject peoples andpreserve their own government free.At Waukesha, Wis., April 3, 1903, the President said to his audience: "We cannot help playing the partof a great world power. All we can decide, is whether we will play it well or ill." But one of ourgreatest jurists and at the same time a most ardent lover of liberty, Mr. Justice Harlan, of the UnitedStates Supreme Court, speaking a few years ago, said: "Let us hope that this great instrument "(referring to the Constitution) "which has served so well, will weather the storms which the ambitionsof certain men are creating in the effort to make this country a world power." Imperialism necessarilyFederal UsurpationElectronically published by Family Guardian Fellowship

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brings to the front politics, schemes of empire, while the ordinary interests of our people will beoverlooked. Mr. Cleveland, in his first administration, carefully examined the private bills which weresent to him from Congress, and vetoed 127 of them. Of these, 124 were special pension bills. So far asI am able to ascertain, President Roosevelt, absorbed in world politics, has found little, if any, time toexamine bills and has vetoed only a single bill, correcting a war record, during his wholeadministration. Perhaps I should not speak with confidence upon this matter, because he may havevetoed bills of which no public mention was made. But at least he has vetoed no important measureand apparently has given but little attention to the bills which came to him from Congress.Playing the part of a world power what does it mean? It necessarily means the predominance of thequestions affecting foreign affairs in the politics of a nation, and the predominance of the questions offoreign affairs means a weakening of party government, a weakening of the opposition to the party inpower, and the strengthening of the executive. The party which is carrying out an imperialistic policyalways appeals to the pride of the people, to the national spirit, to jealousy against other great powers,and brands every man who opposes the squandering of the public money as stingy, mean, unpatriotic,and a friend of foreigners. Since we adopted a policy of imperialism the power of the President of theUnited States has been increasing with leaps and bounds. Like the Kaiser, who sent an army underCount Von Waldersee to China without consulting the Reichstag, the President to-day sends our navyor army in time of peace anywhere over the world, on any mission he pleases, without ever referring toCongress.Playing the part of a world power results in socialismBut imperialism, because of the heavy taxation which it brings upon the people, is the cause ofdiscontent, of socialism, and all of the evils that follow in their train. France commenced the buildingof her colonial empire in the eighties. At that time her socialist party was of little account. First sheinvaded Tunis in 1881; then Indo-China; then Madagascar and Dahomey, and finally the Fashodacollision with England occurred in 1899. During this period France added subject territories to herdomain amounting to many times her whole area, but the expenditures of government were enormous.Increased burdens were put upon the people, and as the life of the ordinary man became harder andharder, socialism grew rapidly. To-day it is sufficiently influential to practically control legislation inthe Chamber of Deputies. In 1871 the socialists elected but three members to the Reichstag inGermany. A few years later Bismarck commenced pushing his scheme of planting German colonies inall lands. In Africa, in China, in every part of the world, Germany increased its territory. To-day thesocialists number in the neighborhood of 3,500,000 voters and have a large number of delegates in theReichstag. In 1892 the socialists polled about 27,000 votes in Italy. Crispi, as the Prime Minister ofItaly, commenced at that time to carry out his policy of imperialism, and with the growth of that policysocialism has grown, until to-day it has a large representation in the popular chamber of thelegislature. 85The methods and characteristics of imperialism, as described by Sir Henry CampbellBannerman, appearing in the United StatesSince we have become a world power, as described by President Roosevelt, the characteristicconditions of imperialism have been appearing in our own country. Sir Henry Campbell-Bannerman, amaster observer of events in England, a few years ago described the characteristics of imperialism, and85

Cook, Am Acad. of Political and Social Science, Pamphlet No. 316.

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the description fits perfectly the conditions which are seen everywhere in this country to-day. SirHenry, being asked what were the methods and characteristics of imperialism, answered:"I will recite some of them. It magnifies the executive power; it acts upon the passions of the people; itconciliates them in classes and in localities by lavish expenditure; it occupies men's minds with displayand amusement; it inspires a thirst for military glory; it captures the electorate by false assertions andillusory promises; and then, having by this means obtained a plebiscite and using electoral forms in theservile Parliament thus created, it crushes opposition and extinguishes liberty. And the irony of thething is this that all this is done in the name of the people themselves, and under the authority oftheir voice, so that the people, while boasting of their supreme power, are enslaved."Let us take, clause by clause, this admirable description of imperialism and see whether theseconditions exist in our own country. "It magnifies the executive power it inspires a thirst formilitary glory." The minimum strength of the army is now, according to law, 68,951, exclusive of5,208 Philippine scouts and the 574 men of the Porto Rico regiment. Its maximum strength is about100,000 to 104,000, according to the Reorganization Law of 1901, which gave the executive the rightnever before possessed, namely, to increase or decrease the army within that limit as he saw fit. He canincrease the various regiments to war strength at any time without waiting for Congress to act. Prior tothe war with Spain the strength of the regular army was 25,000 men.On January 21, 1903, the President approved the United States Militia Bill passed by both Houses ofCongress. This bill was one of the great triumphs of Mr. Root's supervision of the War Department.Under the old act the state militia was arranged in divisions, brigades, battalions, troops, andcompanies, "as the legislature of the state may direct." Under the new law the President was authorizedin time of peace to fix the minimum number of enlisted men in each division, brigade, battalion, troop,and company. Under the same law the Secretary of War was authorized to provide for participation ofthe organized militia of any state or territory in the encampments, maneuvers and field instruction ofany part of the regular army at or near any military post or camp or lake or seacoast defenses of theUnited States. And to induce the state troops to mingle with the regular army, the law provided that theorganized militia so participating should receive the same subsistence and transportation as is providedby law for the officers and men of the regular army. This was held out as an inducement to the men ofthe militia to visit the camps and to mingle with the soldiers or the regular army, that the spectacles ofwar might fire their ambitions for military glory and arouse a military pride among the people. Thenprovision is made that officers of the organized militia may pursue a regular course of study at militaryschools or colleges of the United States, and receive there the same allowances and quarters to whichofficers of the regular army are entitled. They are to receive pay at the rate of $1 per day while inactual attendance. To make sure of the control of the national government over the state militia, theadjutant general is required to make frequent reports directly to the Secretary of War, and he isempowered to appoint a board of officers who shall examine those desiring commissions in the statemilitia as to their qualifications for the command of troops or of performing staff duties, and this boardof officers is required to certify to the War Department its judgment as to the fitness of the applicantsfor command. Every means which ingenuity could devise whereby the state militia could be attachedto the national government and made dependent upon the national government is found in this statute.With twenty modern battle ships, a great fleet of older battle ships, armored cruisers, monitors, andtorpedo boats, our navy is becoming, after England, one of the most formidable in the world. "Twothirds of the whole revenues of the government are devoted to the payment," says Senator Hale, "ofinheritances from past wars, like pensions which nobody can stop and expenditures in view of futureFederal UsurpationElectronically published by Family Guardian Fellowship

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wars. Of all the taxes that are laid, and all the revenues that are collected, nearly two thirds areexpended for the military in a broad way.""It magnifies the executive power," says Campbell-Bannerman. While our people have seen thePresident sending our cruisers and gunboats to Panama to aid in wresting that state from the Republicof Colombia, to San Domingo to establish a receivership of the customs duties of that Island, and aboutall over the rest of the world to keep up the appearance of a world power, the people "while boasting oftheir supreme power," in the language of Bannerman, "are enslaved." Their earnings pay for all thissplendor, and this glamour is created to divert their attention from the burdens which they bear, andfrom the danger to their liberties which such conditions create. In the meanwhile the President keepsthe people interested, gives them something new to think about, and helps to put off the day ofreckoning for these abuses. "Gild the dome of the Invalides," was Napoleon's cynical command whenhe learned that the people of Paris were becoming desperate, and when murmurs of discontent arise inour own country the President orders the war ships to the Pacific."It conciliates them in classes and in localities by lavish expenditure." The total amount voted by thefirst Congress of President Harrison's administration was about $1,000,000,000, and this vastexpenditure, astounding the people, was one of the principal causes of his defeat for the Presidency in1892. Yet the last Congress appropriated nearly $2,000,000,000 of the people's money. At the firstsession was appropriated $880,000,000 ($80,000,000 of which was for canal expenses), being$300,000,000 more than the first year of the McKinley administration, an increase of sixty per cent. Inthe last Congress about 30,000 bills and resolutions were introduced in the House of Representatives.Six hundred and twenty-eight private pension bills were passed in the last days of the session in anhour and twenty-five minutes, being the highest record in the passage of pension bills in that body.Labor unions and all kinds of social societies, every class that controls votes in the community,anything in the shape of an organization in these days can procure favors and appropriations fromCongress, but the great body of the people who are unorganized pay the bills. Lavish expenditure toconciliate the classes in localities is seen best in the agricultural appropriations, in those for irrigatingarid lands, for the geological survey, and the hundred other means of absorbing the people's money. Nonation in all history has ever scattered with so lavish a hand the hard earnings of its people as theUnited States in the last three or four years; and the President, who is the sworn protector of theConstitution and the law, with every obligation upon him to protect the people from such plunder, hasnot vetoed a single bill, so far as I can ascertain, voting away the people's hard-earned money."It captures the electorate by false assertions and illusory promises," says Campbell-Bannerman. ThePresident, in an address delivered at Fargo, April 7, 1903, says of the administration of justice in thePhilippines: 86 "The administration is incorruptibly honest. Justice is as jealously safeguarded as here athome." Mr. Root says, as quoted above, that while Secretary of War he made the laws and executedjudgment, and yet while he was doing this the President was declaring at Fargo that justice in thePhilippines was as jealously safeguarded as here at home. Trial by jury does not exist in the Philippinesin either civil or criminal causes. 87 In criminal causes the Spanish system was retained. 88"It occupies men's minds with display and amusement," says Campbell-Bannerman. Can anyone fail tosee the changed attitude of the government in recent years? The German Kaiser supervises the opera,86

Lodge, President's Addresses, p. 157.

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painting, sculpture, and about every profession in that country. The censure of the Kaiser destroys theartist. The eyes of all his people are upon the Kaiser what he does and what he says. He seizes everypossible opportunity to declare his sentiments upon every conceivable subject of government inPrussia. He identifies himself personally and publicly with every act of his government, and makesevery act of his administration appear to be his own. Just so in this country. The President has takenover the supervision of about the whole of life. Though not a lawyer, he criticises the decisions of theUnited States Supreme Court and the lower courts. He keeps the eyes of all the people turned towardthe theater of his action, and he is always in the center of the stage. He identifies himself personallyand publicly with every act of the government which he believes will be popular, and never loses anopportunity to declare his sentiments on every question of government. He regards himself ascommissioned to govern the state, and also to lead the people in religion, morals, and ordinary affairsof life. Every social subject brings forth comment from him. Whether football shall be played in theuniversities and colleges and how it shall be played, whether it is a wholesome physical exercise, themorals of the game; what should be taught and what should not be taught in the schools;everything in the scope of human life and human action is within the ken of our President. If any classof men have a grievance they are induced by his action to look to him tor redress, and the kaleidoscopeis kept moving, ever moving, with the central figure ever upon the stage. Kampici, the ChineseMachiavelli, in telling the secret of absolutism twenty-two centuries ago, said:"Amuse the people, tire them not, let them not know."Under these conditions the customs and forms which prevail in monarchical countries are beingadopted here. Secret-service men swarm about the person of our President. Platoons of police arecalled in for guards; cavalry are frequently employed. Court forms are adopted at the executivemansion, and efforts too numerous to detail are made to exalt the person of the President and toaccustom the people to the change of government which has been rapidly going on. A choicecollection of epaulets, with flag flying and band playing, have escorted the Secretary of War to andfrom the depot at Washington. Everywhere in every direction we are putting on the airs and adoptingthe customs of a monarchical form of government, and we are doing this because we have become anempire and because our people are given over to the spirit of materialism, and are forgetful of thesturdy industry and simplicity which marked our fathers and which always accompanies true greatness.The United States ruled from Washington as France is from ParisA few months ago a writer who represents in his ideas those of many people, wrote a letter to the NewYork World containing this statement: "Why not abolish the States and have Departments like France,only more simplified? Retain the State boundaries and names as now, but abolish Governorships andLegislatures. Leave the Congressional Districts and elect two United States Senators from eachDepartment by popular vote." 89 Adopt the government of France in the United States! Let us see whatit is. The revolution of 1789 destroyed all the existing local divisions except the Commune, and theywere replaced by artificial districts so that the Commune is the only true center of local life. 90 Thewhole country is divided into eighty-six departments, at the head of each of which is a prefectappointed and removed at pleasure by the President of the Republic. Although appointed in form bythe President, he is in reality nominated by the Minister of the Interior, who represents the Ministry,8990

N. Y. World, June 24, 1907.

Lowell, Governments and Parties in Cont. Europe, p. 36.

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and has the real power of appointment. The office of the minister is political, and the prefect who ruleseach department under him is a political officer. He is the agent of the Minister of the Interior and tnecentral government in regard to all matters. He has independent authority over all those things in thedepartment which in our country are controlled entirely by the people of the locality. He can dissolvethe local assembly, either directly or through the President of the Republic, and can veto many of itsacts. The local assembly is largely a formal body, the deputy or prefect acting for the generalgovernment ruling the department. The Mayor of each Commune is, to a certain extent, an agent of thecentral government, and is absolutely under the orders of the prefect. His acts in regard to many localmatters, such as police, public health, and many others, may be annulled by the prefect, who also hasthe power to issue, as to those matters, his own direct orders. The prefect may suspend the Mayor ofthe Commune from office for a month; in short, as the agent of the central government, the prefect ispractically the governor of each Commune. It is not uncommon in France for the Minister of theInterior to dismiss the prefect after election, because "he failed to carry his department." Paris isabsolutely under the control of the central government.Representative government in any true sense would be impossible in the United States if we attemptedto legislate for all the affairs of life for over eighty million people composed of all races, all religions,and all grades of intelligence, scattered throughout the different communities and states over a territoryof over three and a half million square miles. Any such attempt to control this country fromWashington would involve a more extensive bureaucratic government than has ever been known in thehistory of the world. Such a government is always autocratic and often corrupt, and yet it is towardsuch a government that we are rapidly tending.Growth of arbitrary methodsWith the imperialistic reign has come arbitrary methods and manners on the part of our President.President Roosevelt, referring to the Constitution of Cuba, an instrument which our government hadhelped to frame, on September 28, 1906, telegraphed Secretary Taft with reference to an adjustment ofCuban affairs:"I do not care in the least for the fact that such an agreement is unconstitutional." The ancient maximof benevolent despotism was, "Let my subjects say what they like so long as I do what I like," but eventhis privilege is not granted the people of the United States, for we have learned in many differentcases that he who differs from our President finds himself involved in great difficulties. The President'slanguage with respect to the South American republics; the general resolution of Congress orderingSpain out of Cuba within thirty days; the summary ejection of people from the White House; theconstant interference in the affairs of other countries; the dismissal of Miss Rebecca Taylor because ofher expressions about imperialism; the executive orders retiring naval officers; the promotion ofinexperienced naval and military officers over the heads of their superiors ; the suspension in severalcases of the Civil Service Law all these point to so changed a condition of affairs that we sometimesthink it is all a dream.Existing conditions a presage of empireThe conditions which we have described are exactly the conditions which have preceded a changefrom democracy to empire and despotism ever since the world began. The building up of greatfortunes; the growth of a moneyed aristocracy; the passing of wealth into the hands of the few; theseparation of the people into classes; the establishment of vast monopolies extorting money from theFederal UsurpationElectronically published by Family Guardian Fellowship

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people; the universal desire for national grandeur and glory, together with the spirit of restlessness inour people these are dangerous omens. If such usurpations as I have described should passunchallenged by the American people, they would soon acquire the force of precedent. Now is the timeand we are the people to watch with jealousy such beginnings, to indignantly attack them and, ifpossible, to destroy them.

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V CONGRESSIONAL USURPATION"The tyranny of the Legislature is really the danger most to be feared, and will continue to be so formany years to come. The tyranny of the executive power will come in its turn, but at a more distantperiod."JEFFERSON."I know not how better to describe our form of government in a simple phrase than by calling it agovernment by the Chairmen of Standing Committees of Congress."WOODROW WILSON."Every foreign observer has remarked how little real debate, in the European sense, takes place in theHouse of Representatives. The very habit of debate, the expectation of debate, the idea that debate isneeded, have vanished except as regards questions of revenue and expenditure, because the center ofgravity has shifted from the house to the committees."JAMES BRYCE.

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CHAPTER V CONGRESSIONAL USURPATION

Decline of popular branch of Congress and contemporaneous growth of this branch in EuropeTHERE is no more striking and significant fact in the public life of our country than the predominancein recent years of the United States Senate over the House of Representatives, the popular branch ofCongress. Claiming to be more democratic than European countries, the whole trend and current in theUnited States recently has been toward the consolidation of power in the Senate and the President tothe destruction of the equipoise of the checks and balances of our Constitution. The tendency ofmodern life during the last thirty years, outside of the German Empire and the United States, has beensteadily toward increasing the power of the legislative body elected directly by the people.The members of the French Senate are elected in each department in France by the electoral collegecomposed of the deputies, the members of the general councils, the members of the special councils,and the delegates chosen by the councils and by the communes or towns. Each department inproportion to its population is entitled to from two to ten senators, who are elected for a term of nineyears, one third retiring each three years. The legislative power of the Senate and Chamber of Deputiesis the same except as to revenue bills, which are originated by the Chamber of Deputies in the samemanner as provided by our Constitution. Notwithstanding that the French Senators are elected in verymuch the same way as in our own country, with a longer term of office, and with equal legislativepowers, and would naturally be a more influential body than the Chamber of Deputies elected by thePeople, yet Mr. Lowell, in his admirable work on "Governments and Parties in Continental Europe,"says: "In reality it is by far the weaker body of the two, although it contains at least as much politicalability and experience as the other House, and, indeed, has as much dignity, and is composed of asimpressive a body of men as can be found in any legislative chamber the world over. The fact is that,according to the traditions of the parliamentary system, the cabinet is responsible only to the morepopular branch of the legislature, and in all but one of the instances where the cabinet in France hasresigned on an adverse vote of the Senate, the vote was rather an excuse for the withdrawal of adiscredited ministry than the cause of its resignation." 91The Italian Senate is composed of the princes of the royal family, of members appointed by the kingfor life, of bishops and high officials, civil and military and judicial, and of deputies who have servedthree terms or six years. It has the right to originate legislation except revenue measures, which mustbe first presented in the Chamber of Deputies. It has judicial functions, and sits as a court to tryministers impeached by the Chamber of Deputies, to try cases of high treason and attempts upon thesafety of the state. Clothed as it is with legislative initiative like the Chamber of Deputies aside fromrevenue bills, its members being selected from the higher walks of life, one would expect it to be themore powerful. But Mr. Lowell says:"As a matter of fact, the Senate has very little real power, and is obliged to yield to the will of theLower House." 92In Switzerland the Council of States corresponds to the United States Senate, and its members areelected by the local legislature of each canton, while the members of the National Council are electeddirectly by the people. We see in Switzerland the exact copy in this respect of our own government.9192

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The members of the Council of States represent their cantons. The delegates in the National Councilrepresent the people. The power and influence of the Council of States has steadily declined while thepower of the National Council has steadily increased, and it is said that ambitious young Swiss seek itin preference to the Council of States. With us a term or terms in the House of Representatives is astepping-stone to the Senate. In Switzerland a term or more in the Council of States is a stepping-stoneto the National Council.In like manner we might pass over each European country, with the exception of the German Empire,and find that for many years the Chamber whose members are elected directly by the people has beenthe governing body of the country, while the power of the upper house has been steadily waning. In theGerman Empire, however, the power of the Kaiser, as King of Prussia and Emperor of Germany, ispractically consolidated with the power of the Bundesrath, which corresponds to our American Senate,and these united powers entirely overwhelm the Reichstag, or popular branch of the legislature. TheGerman Emperor, like the President of the United States, selects his Chancellor and his ministers, andthey are accountable to him only. Through the Bundesrath, in which the Kingdom of Prussia has acontrolling influence and in which the Chancellor is all powerful, the German Emperor controls to agreat extent the legislation of the German Empire. The conditions of Prussia and of the GermanEmpire to-day are much more similar to those in the United States than those in any other country inthe world. We need not call to the reader's attention that Great Britain is ruled by its House ofCommons, and that the House of Lords, while it occasionally refuses its assent to a bill, eventuallygives way to the House of Commons.The causes for the decay in power and prestige of our House of Representatives are easilyascertainable. Though its members are elected directly by the people it is one of the most undemocraticbodies in the world. For all practical purposes there is no House of Representatives. The Speaker andthe Chairmen of Committees practically control all the legislation of the House, and control it bymethods so arbitrary and despotic that they would not be tolerated even in Russia.Government by committees and absence of public discussion the causes of decayThe Constitution simply provides that the House shall choose its Speaker and other officers, but saysnothing of their powers and duties. In legislative bodies of other countries, the speaker is selectedwithout any reference to partisan bias, and he presides over the chamber with absolute impartiality. Inour House of Representatives, however, he is selected because of his many years' experience in theHouse, his knowledge of its rules, and his ability to use those rules and his place to further the politicalinterests of his party. He appoints the members of sixty-two committees, among whom the legislationin the House is parceled out for examination. He selects the chairman also of each committee. If heknows what particular measures may be brought to the attention of the House, he is able to arrange thecommittee to which those measures will be referred so as to secure action in accordance with his ownviews of the subject under consideration.Except when the friends of measures presented to the House of Representatives are allowed to be heardupon them, the committee meetings are secret. The House never knows, nor do the constituents of amember of Congress ever know, what his action in a committee was upon any particular bill; and if amember of the committee should disclose it in the open House, or anywhere else, it would be a matterof reproach. So we have sixty-two different committees, composed in greater part of about elevenmembers each, secretly passing upon the advisability of legislation. With no public discussion, withFederal UsurpationElectronically published by Family Guardian Fellowship

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the seal of secrecy upon committee action, the whole matter of passing a public statute is unknown tothe constituents of each representative, in fact, unknown to all the people of the United States.Responsibility is absolutely impossible under such conditions, but general corruption is altogetherprobable. A great corporation, or combination of capital, seeking special legislation, would be unableto control a majority of the House of Representatives where the merits of the legislation were knownand openly discussed. But a committee is easily controlled because its action is secret, and theconstituency of a member would never know what his action had been. Occasionally such corporationscan reach the chairman, who practically controls the action of his committee. If unable to control thechairman, it can influence two or three members of the committee, who, by what is known as "logrolling " with other members, can bring about the approval of an obnoxious bill.The greatest benefit of open discussion of public business is the enlightenment of public opinion, butby this method of legislation the public is kept in ignorance of what occurs in the committee, and itcomes to take little interest in legislation. Not even the representatives of the newspapers can ascertainwhat is taking place in these committees. With no public discussion of the merits of the bills, there isno public interest in their passage, and no opportunity whatever for public opinion to bring eithercommendation or condemnation to bear upon a bill.Great volume of legislation and the arbitrary methods of its passageNow let us observe the number of bills referred to these committees. Between the first Monday ofDecember, 1905, and February 17, 1906, 15,000 bills and resolutions, covering every conceivablesubject of legislation, were introduced into the House of Representatives and referred to theappropriate committees. 93 Thirty thousand bills and resolutions were introduced into the House ofRepresentatives in the Fifty-ninth Congress. Three hundred and seventy-five members of that Househad little if any knowledge of any one of those 30,000 bills and resolutions before they were reportedby the committee.Now what opportunity have they to know anything about a proposed law after it is reported by thecommittee? The chairman of that committee is usually awarded one hour for the discussion of his bill.The chairman selects the members of the committee who are to speak upon the bill, and fixes the limitof time for each. He even has the power to determine whether an amendment may be offered. Withinthe time given to him he demands the previous question, and in the large majority of cases the bill issimply jammed through by a party vote which knows not and cares not for its effect upon the publicwelfare. Thousands of bills in recent years have been passed by the House of Representatives, of thecontents of which the greater part of the members voting for them necessarily knew nothing.The ablest men in the House are selected for the Ways and Means Committee, having charge of theraising of revenue, and for the fifteen or more committees having charge of appropriations. Theappropriation bills are the most important bills passed in our day by the House of Representatives. Tounderstand fully the wisdom of an appropriation, the members must be thoroughly versed in thetechnical details of those departments of government asking for the appropriations. Thus the attentionof a large number of the ablest members of the House is continually diverted from the consideration ofgeneral legislation by the absorbing obligations of the committees on appropriations.93

Address of Speaker Cannon of February 17, 1906, before the Union League Club of Philadelphia. Annual Report ofClub, p. 113.

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The ordinary bill, outside of appropriations, if reported to the House without objection in thecommittee, is usually passed without any opposition. The larger part of all the legislation is madepractically by the committees in secret so far as the House is concerned. On January 11, 1907, theHouse had 700 private pension bills on its daily calendar, and 628 of them were passed in one hour andthirty-five minutes. On, one day in January, 1905, 459 bills were passed in the House ofRepresentatives in eighteen minutes. In 1899 the River and Harbor Bill, carrying appropriationsamounting to $30,000,000, was passed in the House of Representatives after a debate of ninetyminutes. 94 The whole governmental policy of our country toward our dependencies, including ourrelations to Cuba, was determined by the amendments to the Army Appropriation Bill of 1901,measures to which the House gave up but a single hour of discussion. 95We have assumed above that a bill which had been reported with approval by a committee would beentitled at least to a hearing in the House. This is not so. The Committee of Five on Rules, selected bythe Speaker and of which he is chairman, at any time may report a rule which makes impossible thehearing or passage of any particular bill. This committee can even go so far as to propose for theconsideration of the House a measure not yet reported, and may discharge a committee from anymatter pending before it. It can fix the hearing of any bill for any particular day by special order. It hasthe practical control of the entire course of business in the House, determining how much time shall begiven to any subject and in what order business may be brought before it. It can provide that a billreturned from the Senate be taken up and passed at once without debate. It can provide and hasprovided that points of order, as objections, should not be allowed to intervene against theconsideration of an appropriation bill. 96Although the Speaker, through the Committee on Rules, exercises practically omnipotent power overlegislation, such power is apparently insufficient for his ambitions. He has, in addition, what is knownas the power of recognition, or, what would be more truly descriptive, the power of nonrecognition ofmembers, although he is aware that they are making a motion. If a member asks for the unanimousconsent of the House to suspend a rule and pass a bill, the Speaker's acuteness of hearing depends uponthe member asking, and whether the Speaker desires that unanimous consent shall be given. He refusesrecognition to any member attempting to speak upon a bill whose name has not been given him by thechairman of the reporting committee. He frequently refuses to have any bill heard before the House towhich he is opposed, and takes it from its order upon the calendar, placing it where it will not bereached. He practically controls all the legislation of the House, and controls it by methods so arbitrarythat to submit to them is degrading. In 1881 an indignant member declared upon the floor of theHouse:"When this Republic goes down ... it will not be through the 'man on horseback' or any President, butthrough the man on the woolsack in this House, under these despotic rules, who can prevent theslightest interference from individual members; who can, if he will, make and unmake laws like anemperor, hold back or give the sinews of war and the salaries of peace." 97 Bourke Cockran, speakingin the House in April, 1904, said: "Again, sir, by our rules no Member can challenge the judgment ofthe House on anything. He cannot even address a petition or offer a resolution from his place on thefloor. He must go around to a basket, out of the notice of the House, and drop his application, his

Reinsch, American Legislation and Legislative Methods, p. 69.

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resolution, or petition silently and secretly into a receptacle, as though he was engaged in an act ofdoubtful propriety to be performed surreptitiously."Let us see now some of the direct results of this kind of legislation. In the Fifty-seventh Congress theHouse passed 3,430 bills and resolutions. During the second session of the next Congress there werereported by the various House Committees 4,904 measures. During the same session 3,992 acts werepassed by both Houses, 1,832 of which were public acts, 2,160 private laws, and 40 joint resolutions. 98To note a decided contrast, during the years between 1899 and 1905 the English Parliament, legislatingfor 42,000,000 people, passed only 46 general and 246 special laws.Extravagant expendituresTwenty years or more ago, when the Pension Department was refusing to approve many pensions,Congress commenced passing private pension bills. And now many members of the House, having noopportunity to distinguish themselves in debate, for the House "has ceased to be a deliberativeassembly," are engaged exclusively in procuring the passage of private pension bills and of measuresmaking appropriations for their own districts. Representative Curtis, now United States Senator fromKansas, among others, kept directories of applicants for pensions, with thousands of names and notesas to the status of each claim. Members accept all kinds of bills and present them to the House as anaccommodation to their friends and constituents. The result is that, notwithstanding all the powerspossessed by Congress are enumerated in seventeen short sections, it passes more bills in each twoyears than are passed in the same period by all the other national legislative bodies in the whole world.No bill should ever be sent to a committee until after open discussion in the House, and then it shouldbe sent there only for the purpose of correction and amendment, later to be reported, discussed, andpassed in the full House. No private pension bills nor special bills should be considered by Congress.The Pension Bureau and Court of Claims are quite sufficient to care for those.Striking out the private bills, the House should not consider over 200 bills, outside of the appropriationbills, in a single Congress, and those should be discussed in open session with no limits upondiscussion. With 30,000 bills before a single Congress, few bills can receive any attention. Bothchairmen and members of committees, having no chance to procure fame and honor by manly effortsin discussing public matters in open session, turn naturally to gaining favor by seeking to conferbenefits through legislation and thus to attach a large number of their constituents firmly to themselves.Because it is impossible for the House with such a large body of legislation before it to give carefulattention to measures, and because the chairman and members of each of the sixty-two committees arestruggling to increase the power of their committee by reporting many bills, the cost of government ismultiplied many fold. The Fifty-first Congress, in 1890-91, made appropriations to the amount ofabout $1,000,000,000, or $170,000,000 more than ever before had been appropriated by any Congress.Between 1890 and 1902 Federal expenditures increased nearly one hundred per cent. Theappropriations of Congress for the year 1898 were $485,002,044; in 1906, the first session of the Fiftyninth Congress, they were $820,184,624, or nearly double the amount of eight years before. The lastCongress appropriated to the River and Harbor Bill alone, $83,816,138, a sum larger than the total costof all government in the United States in any single year prior to 1860. The expenses of governmentare fast approaching those of the Civil War with over 1,000,000 men in arms.

98

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Hasty and ignorant legislation

By this method of committees with each member seeking to attach to himself many constituentsthrough lavish disbursements of public money, legislation has increased so rapidly that it has becomeimpossible to secure any careful consideration for any measure except the most important, and it isonly the important which should be considered and passed at all. None of the bills which pass theHouse are discussed in a deliberative way. Frequently only two or three members vote on many ofthem, and most of them are rushed through by unanimous consent without any discussion whatever.The gavel passes the law, the clerk records it. So hasty and careless are the methods of legislation thatthe Dingley Tariff Bill, which filled 163 printed pages and imposed duties upon more than 4,000separate articles of import, introduced at the opening of the session in the House on March 15, 1897, inless than two weeks was passed and transmitted to the Senate, only twenty-two pages of it having beenconsidered and discussed upon the floor of the House. So carelessly and hastily was the work done thatthe sections relating to tobacco rebates were omitted, and the President actually signed a different billfrom the one passed by Congress. Hidden away in the free list were provisions providing for a duty onanthracite coal and petroleum, and when the matter became public not a member of the House wouldadmit that he knew there were any such provisions in the bill. Within twenty-four hours after PresidentCleveland's message in the Venezuela matter Congress unanimously approved his action and declareddefiance to Great Britain. It eventually turned out that Great Britain was right, and that it was a matterwhich should have been carefully investigated. On December 14, 1907, thirteen days after the openingof the present Congress, the dispatches from Washington tell us that 123 of the proposed bills thus farintroduced at the present session of Congress are already laws, of the existence of which apparentlytheir proposers are ignorant.The House of Representatives and the Senate to-day are governing the Philippines, the Canal Zone,and Cuba through the War Department; Hawaii, Alaska, and the territories within the United Statesthrough the Interior Department; and Guam and Tutilia through the Navy Department, while PortoRico is left neither as a state nor a territory. Does such confusion of government bespeak wisdom? Is itstrange that the chaplain of Congress is said to close each succeeding session with the generalconfession: "We have done those things we ought not to have done; we have left undone those thingswe ought to have done. Spare us, good Lord, miserable sinners."Absence of debate stifles worthy ambitions of members and destroys public interest in legislationBut the worst feature of such lawmaking by the Speaker of the House is found in its effects upon themembers. The tendency upon the individual member is to destroy his self-respect and his sense ofresponsibility to his constituents. All his aspirations for fame are quenched by these despotic methods.There is no longer any opportunity in the House for an honorable career through the manly art oforatory, or the ability to discuss wisely public questions. The Speaker cracks his whip over themembers, keeping them continually in subjection by their desire for the one avenue of prominence appointment to an important committee. Take hope and opportunity for advancement away from a manand you destroy all the springs of effort. Napoleon well understood this when he said that every Frenchsoldier carried a Marshals baton in his knapsack. And the Catholic Church has always appreciated it,for it can be truly said that every son of the Church carries the red hat of a Cardinal in his cowl.Speaker Reed was well aware of the one ambition of the members, so when the Dingley Bill had beensent to the Senate in March, 1897, he postponed the appointment of the committees, holding them inabeyance over the members until the return of the bill and its passage. It was not until the 24th day ofFederal UsurpationElectronically published by Family Guardian Fellowship

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July, when the Dingley Bill had become a law, and when the measures in it objectionable to theSpeaker had been abandoned, that he finally consented to make up the committees. He well knew thatuntil he appointed those committees the future of every member of the House was in his keeping, andtherefore the member to some extent would be subservient to his will, and knowing this, he kepthimself in a position where he could coerce the whole House and thus become the real legislatingpower.Limit the number of bills which can be introduced in the House; permit each bill to be openly and fullydiscussed, and the members, once liberated from autocratic rule, would become eager to understandthe merits and demerits of a bill and to achieve a record for able discussion of public matters. Thepeople would become interested in the legislation of the House, the newspapers would giveprominence to its discussions, and it would become again a democratic body reflecting the feelings,opinions, emotions, and impulses of the whole country. Democratic government is either a failure, andshould be abandoned, or such an institution should be destroyed in order that the people once moremay become an active part of the government. A democratic republic cannot live without discussion.Senators representatives of propertyAt the time of the Constitutional Convention, in 1787, in the ten states in which there were twochambers in the legislature, the basis of representation in the Senate was the possession of taxableproperty, and in most states a considerable amount of wealth was required, in order to entitle its ownerto vote for a state senator. The great weight of opinion in the Convention framing the Constitutionfavored the selection of the Senate in such a manner as to make it representative of property.Gouverneur Morris, embodying that sentiment, said:"The Senate should be composed of men of great and established property, not liberty but property isthe main object of society. The savage state is more favorable to liberty than the civilized state, andwas only renounced for the sake of property." 99Under Augustus no man was eligible to the Roman Senate who possessed less than a sum equal to$250,000. The most of our United States senators have amassed considerable fortunes in trade,commerce, or manufactures, and desire above all things for themselves and for their families socialposition. Senators who have prospered during recent years naturally are allied closely with theeconomic conditions of our time, and are opposed to any change, however unjust the conditions maybe toward the mass of the people.A considerable number of senators have for many years been largely interested in industries dependentupon protective tariffs and special laws, and are today financially interested in trusts dependent uponspecial legislation. The English House of Commons, in the reign of Charles I, by resolution prohibitedpersons who were the owners of interests in monopolies from sitting in the Commons, and made it theduty of each member if he knew of a fellow-member who belonged to a monopoly, to publicly namehim in the house so that he might be expelled. 100 The power of the Senate also consists in its99

Elliot's Deb., vol. v, pp. 278, 279.

Resolved, "That all projectors and monopolists whatsoever; or that have any share or have had any share, in anymonopolies; or that do receive, or lately have received, any benefit from any monopoly or project; or that have procuredany warrant or command for time restraint or molesting of any that have refused to conform themselves to any suchproclamations or projects; are disabled by order of this House to sit here in this House, and if any man here knows anymonopolist, that he shall nominate him; that any member of this House that is a monoplist or projector shall repair to Mr.

100

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compactness. A small House is apt to possess more firmness than a large one, and is apt to feel itsinterests distinct from those of the great body of the people.The Senates rapid growth in power and its close relation to the President in the government ofthe countryBesides, the Senate is closely allied with the President in the exercise of the greatest national powersexisting to-day, the confirmation of treaties with foreign powers, which has come to mean the makingof treaties by the Senate, and confirmation of the appointments of the President, which likewise hascome to mean appointments by the different Senators. George Mason, in the Virginia Convention forthe adoption of the Constitution, said: "It has been wittily observed that the Constitution has marriedthe President and Senate has made them man and wife. I believe the consequence that generallyresults from marriage will happen here. They will be continually supporting and aiding each other:they will always consider their interest as united. We know the advantage the few have over the many.They can with facility act in concert, and on a uniform system ; they may join, scheme, and plotagainst the people without any chance of detection. The Senate and President will form a combinationthat cannot be prevented by the representatives. The executive and legislative powers, thus connected,will destroy all balances." 101While the character of representative government in Europe has become more and more powerfulthrough the popular branch of the legislature, the United States Senate has become the strongest powerin our government because of these vast executive powers conferred upon it, and because materialisticforces are so influential in our country. The House of Representatives has become only a checkingbody upon the power of the Senate, and a very weak one at that. Little by little for the last forty yearsthe Senate has been increasing its power. The right to originate bills for the raising of revenue isconferred upon the House, and the Senate has only the power to propose or concur with amendments.This provision of our Constitution was taken from the English system, where for hundreds of years, ina single bill, the House of Commons provided for the raising of revenue, and in the same billprescribed the specific purposes for which the revenue should be applied. Undoubtedly, this provisionwas intended to cover appropriation bills, as well as distinct measures for the raising of revenue;however, bills for the raising of revenue, and bills for the appropriation of public moneys, passed bythe House, are often amended in the Senate by cutting out the main part of the bill, aside from theenacting clause, and then making a new bill.The Senate made 634 changes in the House measure known as the Wilson Bill, in 1894. Nearly all ofthese amendments increased the duty on foreign imports. When the Dingley Bill of 1907 was returnedto the House of Representatives, it contained 870 amendments, being practically a new bill. In 1872the House passed a bill abolishing the duties on tea and coffee. The Senate amended the bill byimposing duties upon 4,000 or 5,000 different articles, and the House, instead of resenting thisinfringement of its rights, passed the bill upon its return. In 1883 the House passed a bill for thereduction of a few internal taxes; the Senate amended it by imposing duties on thousands of imports,and returned it to the House. The protectionists in the House, by an adroit maneuver, succeeded inhaving the bill referred to a conference committee; and this conference committee, not the House, to

Speaker that a new warrant may issue forth, or otherwise, that he shall be dealt with as with a stranger, that hath no powerto sit here " (See The English Patents of Monopoly, by William Hyde Price, 1906.)101Elliot's Deb., vol. in, pp. 493, 494.

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which the Constitution had given the right, but a mere conference committee, imposed burdensomeduties upon about 5,000 articles of import.Government of Congress undemocratic and a shelter for usurpationJefferson said of the power of the Senate to refuse to concur with the President in appointments tooffice, that the Senate should only see that no unfit person was appointed. The Senate now, however,has reached the point where it dictates appointments to the President, and then ratifies its ownappointees. Step by step it has reduced the members of the House of Representatives to a kind ofvassalage. If a representative desires to procure an appointment of a man from his district to a publicoffice he appeals to his Senator for aid, and in return he surrenders to some extent his independence.Not only is this true, but so weak is the ordinary member, especially the newer members of the House,under the despotic methods of the Speaker, that they frequently resort to the Senators from their statesto procure appropriations for their districts, by amendment to an appropriation bill sent to the Senatefrom the House.The Senate no longer confirms treaties; it reconstructs treaties made by the President. It rejected theOlney-Pauncefote Arbitration treaty, the Hay-Pauncefote Canal treaty, the Newfoundland Reciprocitytreaty. It did not report upon the French Reciprocity treaty, and about ten other reciprocity treaties withdifferent countries; and it allows no treaty to pass without modifying it so that it becomes practically atreaty made with the Senate.By means of the power of dictating the President's appointments in their own states, by their control ofthe appointments desired by members of the House of Representatives, and by reason of their closerelations with railways, monopolies, and the general corporate interests of the country, the Senatorshave built a gigantic machine in each state whereby they control the patronage of their state, create afollowing among the politicians, and grant favors to the corporate interests which they represent inboth state and nation. In every state that department which proves in practice the strongest will push itsjurisdiction farthest. These masters of the great political machines of their states sit in their seats in theUnited States Senate with a large part of the patronage of the government in their hands, as mighty apower and at the same time as corrupt a power as Walpole, master of bribery. The close bond betweenthe President and the Senate is patronage. Through this the President, to some extent, is enabled tocontrol the Senate; and the Senate, to a considerable extent, to control the President. The resultnaturally follows that the two powers act in concert; and together they destroy all equilibrium betweenthe branches of the government, override the House of Representatives, and exercise more or lessinfluence over the courts.Now let us consider the checks upon legislation. A proposed law introduced in the House ofRepresentatives may be killed by the committee to which it is referred. If it is reported by thatcommittee it may be destroyed by the committee on rules. If it escapes the committee on rules it maybe defeated by the Speaker. If it passes over all these obstructions and is passed by the House and sentto the Senate it may be defeated in one of the committees of the Senate- If it reaches the Senate withthe approval of the committee it may be defeated by the Senate. If it passes both Houses it may bevetoed by the President. If then passed by a majority of two thirds of each House it may be declarednull and void by the United States Supreme Court. Was ever a system so cumbersome, so calculated todefeat the will of the people, so great a shelter for corruption, created by the perverse ingenuity ofman? The Nation says: "There is somewhere in the reports of our courts the history of a private claimFederal UsurpationElectronically published by Family Guardian Fellowship

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of unquestionable merit, which was passed without opposition ten times by one House and fourteen bythe other, and yet never succeeded in getting through both Houses of the same Congress." 102 1Until the Civil War, government in the House of Representatives was carried on by discussion. Menwere elected in those days because they were able to present matters forcibly in debate and to discusspublic questions upon their merits. With the corruption which came in at the time of the Civil War andthe concentration of great interests in the hands of a few men, came the concentration of power in thehands of a few leaders in the House. It became the motto "to do things "; to handle a large amount ofbusiness; to pass acts without discussion; to accomplish results. With this tendency the prestige of theHouse has gradually disappeared. The Senate much more wisely has put no limits upon discussion and,notwithstanding its close alliance with corporate interests and its secret executive sessions, it is still amore democratic body than the House; but House and Senate will reform themselves from within oreventually there will be a reform from without. If the House of Representatives is truly to represent thepeople its bills must be confined to ^public matters, it must not attempt to examine more than a fewhundred measures during each Congress, and it must discuss these publicly. We wish no Spartanassembly with its contempt for talkers. Discussion is the life of free government and withoutdiscussion it will not long continue.The Department of Agriculture our most prolific source of usurpationThe kind of government which we have been reviewing is exactly the kind of government where thepeople can know but little about what is going on, and gradually will become indifferent to publicaffairs because of their lack of knowledge. Behind government by committees, which carry on theirwork in secret, have naturally arisen usurpations of government. Those usurpations have been going onso long as to have become a normal condition. In the President's message to the Fifty-seventhCongress, speaking of the Department of Agriculture, he says: "It has gone into new fields until it isnow in touch with all sections of our country." Indeed it has gone into new fields. The Department ofAgriculture dates from 1862 in the midst of the Civil War, a time of great usurpation. It consisted ofthe Commissioner of Agriculture, a statistician, a chemist, an entomologist, a superintendent of thepropagating garden and experimental farm. In 1868 a botanist was appointed, and in 1871 amicroscopist; in 1877 a forestry division was created, then a division for the investigation of animaldiseases; in 1884 a special bureau of animal industry was established, and in 1887 agriculturalexperimental stations were established throughout the country. In 1889 the Department of Agriculturewas raised to the rank of an executive department, and its head became the Secretary of Agricultureand was given a seat in the President's Cabinet. From that time the department has grown rapidly. Theweather bureau, a department having control of irrigation, a department having control of roads, abureau of chemistry, a bureau of soils, a bureau of statistics, and the division of biological survey haveall come into existence.To-day it is carrying on a thousand undertakings and spending millions of dollars each year forpurposes which cannot find a single line or word in the Constitution justifying their expenditure. Therehas not been in the history of our country such extensive and clear examples of usurpation as everydepartment and every work connected with the Department of Agriculture furnishes, if we exceptalone its undertakings relating to interstate or foreign commerce. 103 The Department of Forestry,engaged in a work of the greatest national importance and doing that work with the most admirable102103

The Nation, xvi, 145.

American Law Review, vol. xxx, p. 787.

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results for the country, and the Department having charge of quarantines against the importation ofdiseased cattle or their transfer from one state to another, may find some justification for theirexistence in the control of Congress over interstate and foreign commerce, but aside from these there isnot a provision in the Constitution giving a foundation for even an inference authorizing theappropriations for agriculture. Chief Justice Marshall says: 104 "The powers of the legislature "(referring to Congress) "are defined and limited; and, that those limits may not be mistaken orforgotten, the Constitution is written. To what purpose are powers limited and to what purpose is thatlimitation committed to writing, if these limits may at any time be passed by those intended to berestrained. The distinction between a government with limited and unlimited powers is abolished, ifthose limits do not confine the persons on whom they are imposed, and if acts prohibited and actsfollowed are of equal obligation."If there is no express grant of power in the Constitution which confers the control of agriculture uponthe national government, surely everyone will concede that no such power exists. The thousands ofdifferent powers exercised by the Department of Agriculture are powers which would belong to thestates, unless they were conferred by the Constitution, since they have to do with domestic affairsalone. Now such express powers cannot be found in the Constitution. In this connection it is interestingto see that the Convention which framed the Constitution discussed this very question. On August 18,1787, it was proposed to vest in the national government the right "to establish public institutions,rewards, and immunities for the purpose of agriculture, trades, and manufactures," and this wasrejected. At the same time it was proposed "to establish a university to encourage by proper premiumsand provisions the advancement of useful knowledge and discoveries," and this likewise wasrejected. 105 It was also proposed to authorize Congress to grant charters of incorporation in caseswhere the public good might require them, and this also failed. Thus the precise power which theDepartment of Agriculture exercises was rejected in the Constitutional Convention, and still, in theCivil War, a little over seventy years later, we find the government establishing this bureau.Let us see the kind of work which is being done by this department. In a bulletin issued by the Chief ofthe Division of Publications on January 19, 1907, this department calls to the attention of the farmersits publications on about a thousand different subjects, including the cost of raising calves, the feedingof chickens, the control of coddling moths, the cooking of meats, the cooking of vegetables, thegrowing of cucumbers, the control of the boll weevil, the use of skim milk for feeding calves, thefeeding of ducks, the remedy for flies on cows, the growing of peanuts, the building of hogpens, thefeeding of hogs, the clearing of flies from houses, the making of jellies, the shearing of lambs, themanagement of pigs, the raising cost of pigs, the making of preserves, the use of skim milk inbreadmaking, and hundreds of other like matters.Under the provisions of an act of Congress of June 30, 1906, $82,500 was appropriated to enable theSecretary of Agriculture to undertake experimental work in eradicating ticks which transmittedsouthern cattle fever. Inspectors were sent out in groups of about a dozen on horseback, with lassoslike cowboys, to rope and examine the cattle in Texas, Missouri, Arkansas, Louisiana, Kentucky, andother states. The report of the Secretary of Agriculture says: "They covered their territorysystematically, roping and examining cattle wherever found, and informing the owners of infestedcattle of the most practical method of getting rid of the ticks." 106 The fecundity of sows was anotherobject which this department investigated in the year 1905-6. An investigation of fifty-five thousand104

Marbury v. Madison, 1 Cranch, 137.

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litters was made and the Secretary of Agriculture assures us that the investigations are to be followedwith a statement of the inheritance of fecundity. 107 Investigations with a view to developing a strain ofchickens with increased egg-laying capacity were also carried on extensively in that year. Experimentsas to animal nutrition, as to feeding cottonseed products to hogs, as to the production and handling ofmilk, as to the making, maturing, and storing of cheese, were extensive and costly. The pear blight, thepeach blight, the growth of melons, and hundreds of other such subjects were investigated at the costof hundreds of thousands of dollars in that year. Extensive experiments were made with tobaccowrappers for the aid of the Connecticut valley tobacco interests.This prolific department seems to be ambitious to encourage the production of tea in this country, for itcarried on in that year extensive investigations in South Carolina for the purpose of determining thepossibilities of the commercial production of tea. Seven million packages of miscellaneous vegetableand flower seed were bought in the general market and sent out during the year to farmers. Watersused as beverages were examined, and one hundred and fifty-four samples of cattle food were analyzedto determine the quality of cattle foods sold upon the markets. The subject of tanning and the effects ofdifferent tanning materials upon the character, quality, and durability of leather were investigated,apparently for the benefit of the leather trust. At Fresno, Cal., in the Yakima Valley in Washington,and in the Yellowstone Valley in Montana, extensive experiments were made in soaking the alkali outof the land and studying the drainage system. The damages caused by the rabbit pest in orchards, bythe boll weevil in cotton, and by the gypsy moth in Massachusetts, were also investigated. The UnitedStates likewise has taken hold of the question of good roads, and it appears that during the year 1905-6seventeen roads were built in eleven states. Now I undertake to say with all positiveness that no goodauthority for any of these works can be found in the Constitution, and yet the United Statesgovernment, for the year ending June 30, 1907, devoted to the Agricultural Department upward of$10,000,000, besides several hundred thousand dollars of what are called emergency appropriations.Appropriations for irrigation unconstitutionalThe United States Supreme Court in a recent decision has held that no powers are conferred upon thenational government to expend money in irrigation for the several states. 108 Justice Brewer, writingthe opinion, says: "Turning to the enumeration of the powers granted to Congress by the 8th Section ofthe 1st Article of the Constitution, it is enough to say that no one of them by any implication refers tothe reclamation of arid lands." On June 17, 1902, Congress passed an act authorizing the constructionof irrigation works by the national government in California, Colorado, Idaho, Kansas, Montana,Nebraska, Nevada, North Dakota, Oregon, Washington, and several other states. The projectcontemplated the forming of a water-users' association in all of these states, and the sale to them by thenational government of water from its reservoirs. The moneys received from the sale of public landswas devoted to the purpose of erecting the tunnels and dams for a large number of irrigation works,and on September 30, 1906, $15,456,900.13 had been expended in their creation, while $39,155,161had been allotted for their erection in sixteen different states and territories.The Secretary of the Interior, in his last report, says:"One of the important points which has already developed is that greater protection must be offered bylaw to the works when finished. There is no Federal statute which can be invoked to protect these107108

Report of December, 1906, p. 24.

Kansas v. Colorado, 206 U. S., 87-90.

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works, and the local statutes vary in different states and territories." 109 Why is it that no Federalstatute can be invoked to protect these works and that local statutes are the only protection? Theanswer is simply this: The United States government has no authority in the Constitution to spend adollar for the erection of these plants, or to enter the business of gathering water and selling it tofarmers, and if a Federal statute was passed to protect such works, any attempt to punish a man under itwould result in the courts declaring it unconstitutional. The government has entered upon thisenterprise simply for the purpose of attaching to it millions of farmers scattered through these states,well knowing that every dollar of the public moneys used in this way is wrongfully diverted from thepublic treasury and wrongfully converted by Congress.Congressman Wadsworth, Chairman of the Committee on Agriculture in the last Congress, commentedat length on the tendency of the Department of Agriculture to usurp powers of the state governments.The House was considering the Nelson Amendment, increasing the agricultural appropriations, andMr. Wadsworth said that the practice presented a serious menace to local control, when considered inconnection with bills now pending before the Committee on Agriculture. He stated that those billsincluded aid to state normal schools, district agricultural colleges, mechanical and state high schools;and he added that, if appropriations were made for such purposes, by and by they would be extended tograde schools and then "you will have Federal control and supervision of your public schools." Mr.Tawney, Chairman of the Committee of the House on Appropriations, said: "If we continue this systemof paternalism much longer, it will not be long until Congress will be swept off its feet and called uponto account for from $25,000,000 to $50,000,000 annually for the construction and maintenance of goodroads."Detailed acts of usurpationIn the last Congress there was considerable discussion about creating a new Department of Hygiene,and giving the head of this Department a place in the cabinet. At the rate we are going, within twentyyears most of the powers of the states will be usurped by the general government. In like manner thegovernment is devoting large sums of money to the advancement of memorial and historicalassociations, to the maintenance of a Bureau of Education, to the aid of communities suffering fromextraordinary catastrophes, and for numerous similar objects. It simply usurps this power because thepeople are quiet and do not protest.On March 8, 1898, ten days before the President sent to Congress the report of the Naval Board ofInquiry on the destruction of the Maine, the House of Representatives at a single sitting and with nodebate whatever, by a unanimous vote of 313 gave to the President of the United States $50,000,000 tobe expended "For the national defense and for each and every purpose connected therewith to beexpended at the direction of the President and to remain available until January 1, 1899." On the nextday, March 9th, the bill was passed in the Senate in one sitting and without a word of debate, by aunanimous vote of seventy-six. This was said to be the third occasion since the Civil War on whichCongress had been unanimous about anything. 110Such a vote of public money probably was never known before in the history of constitutionalgovernment. Congress certainly had no power to vote the money in that manner. The grants of moneyby Congress must declare in the bill granting them the specific ends and purposes of the grants; an109110

Report, December, 1906, p. 102.

Bradford, Lessons of Popular Government, vol. ii, pp. 508, 509.

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express appropriation of this money to a particular purpose was essential to the very validity of thegrant. This has been the practice of Congress during the whole period of our constitutional history, andthe practice of the English House of Commons for five hundred years. Yet, notwithstanding this.Congress invested the Chief Magistrate with absolute discretion in expending this money. The framersof the Constitution believed that specific appropriations should be made, because they feared if it wereotherwise the executive would possess an unbounded power over the public purse of the nation. Thisact, turning the money over to the President, is simply an example of the recent acts of Congress,placing in him the widest discretion and giving him the opportunity to exercise the most arbitrarypower. A more dangerous exercise of power could not be conceived.The suspension of the operation of statutes by the heads of departments is becoming common in ourday. The late Secretary Hitchcock, of the Department of the Interior, permitted the withdrawal fromallotment of nearly 4,000,000 acres of land, belonging to the five tribes in the Indian Territory, for thepurpose of creating a forest reservation, notwithstanding the statute forbade such action. The motivefor doing this was undoubtedly excellent. The Secretary of Agriculture, upon consulting with the Headof the Department of Forest Reserves, in furtherance of the highest public interests had asked that thisbe done. It is just because such unauthorized powers are exercised for good purposes that they becomedangerous to the public welfare. Early English kings frequently exercised this power of suspending theobservation of statutes, not alone in favor of certain individuals, but for the entire nation.Another exercise of arbitrary power is found in the passage of laws by attaching them as riders toappropriation bills. During the Fifty-seventh and Fifty-eighth Congresses, 574 acts of public permanentlegislation were passed, of which 176 or thirty per cent were carried through as riders on appropriationbills. The original act conferring jurisdiction over navigable waters on the Secretary of War, and givinghim absolute and unlimited control over wharves, bridges, and other structures in all navigable waters,by which he can exercise almost autocratic power affecting hundreds of millions of dollars' worth ofproperty, was passed some years ago by Congress as a rider on an appropriation bill. It never wasreported separately by the committee, and probably its existence as a rider was unknown to most of themembers of Congress voting for the appropriation bill.The prolific source of much of this legislation is the eighteenth subdivision of Section 8, Article 1, ofthe Constitution, which provides that Congress shall have power to "make all laws which shall benecessary and proper for carrying into execution the foregoing powers." Thomas Jefferson, in April,1800, writing to Edward Livingston, discusses this clause as follows: "The House of Representativessent us yesterday a bill to work the Roosewells' copper mines in New Jersey. I do not know whether itis understood that the legislature of New Jersey was incompetent to do this, or merely that we haveconcurrent legislation under the 'sweeping clause.' Congress is authorized to defend the nation; shipsare necessary to defense; copper is necessary for ships; mines necessary for copper; a companynecessary to work mines; and who can doubt this reasoning who ever played at 'This is the House thatJack Built'? " The Congressmen who devise statutes to increase the power of the AgriculturalDepartment are endowed with quite as great powers of implication and inference as the members ofthat House of Representatives who provided for the working of the Roosewells' copper mines in NewJersey.Such usurpations lead to socialism and absolutismThe exercise of such powers as we have seen in the Department of Agriculture are found in Russia, inthe German Empire, and in every autocratic government. They are powers which are moving usFederal UsurpationElectronically published by Family Guardian Fellowship

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rapidly toward a form of state socialism in this country. It will not be long before compulsoryinsurance of workmen by the state against accident, sickness, and old age will be urged upon theattention of the people; before we will have an inheritance tax, adopted for socialistic and disciplinaryreasons, to reduce swollen fortunes, and thus to maintain equality between classes. By and by no onewill imagine that any important affair can be properly carried on without the interference of the state;our national government will assume the place of Providence, and all will be invoking its aid forindividual necessities.The absorption by Congress of the legitimate powers of the states ought to cause great discontentamong the people. If they are not indignant at such usurpation of the rights of their states, they neednot complain if eventually the whole country is ruled from Washington, and that means one centralgovernment administering the laws for a continent of 3,500,000 square miles, and a people of100,000,000 population together with millions of colonists. Such a bureaucracy has never been known.To accomplish this result the people must be kept deluded with the old idea that we are not only inadvance of all other countries in all matters, but that we are the only country in the world which hasany considerable liberty. To avert such a thing the people must be brought face to face with the facts.They must become candid and willing to see the faults of their government and themselves, even whilethey hug their virtues. Jealousy and distrust of centralized power will be found to be the sentinels ofthe people's liberty.

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VI THE UNITED STATES SUPREME COURT THE ABSOLUTE

POWER"The execution of the laws is more important than the making of them."JEFFERSON."Let everything that is in favor of power be closely construed; everything in favor of the security of thecitizen and the protection of the individual comprehensively, for the simple reason that power ispower, it is able to take care of itself and tends by its nature to increase, while the citizen needsprotection."LIEBER."If Parliament changes the law the action of Parliament is known to every man, and Parliament tries ingeneral to respect acquired rights. If the courts were to apply to the decision of substantially the samecase one principle to-day and another principle to-morrow, men would lose rights which they alreadypossessed; a law which was not certain would in reality be no law at all."PROFESSOR DICEY.

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CHAPTER VI THE UNITED STATES SUPREME COURT THE ABSOLUTE

POWERPossesses the most absolute power ever conferred upon a courtMARTIN VAN BUREN once said in the Senate:"There exists not upon this earth, and there never did exist, a judicial tribunal clothed with powers sovarious and so important" as the Supreme Court of the United States. 111 The judges are appointed tothe office during good behavior, and their fixed salaries cannot be diminished during the term of theiroffice. The United States District and Circuit Courts can be abolished and their powers conferred onother courts, but the United States Supreme Court, a coordinate branch of the general governmentcreated by the Constitution, cannot be legislated out of existence nor can its judicial powers be limitedin any respect whatever by Congress. The highest courts of all other countries are dependent upon theirparliaments, whose supreme power and authority they must respect, but the United States SupremeCourt is practically independent of the whole nation. The Supreme Court can declare a statute, passedby both branches of Congress and approved by the President, void as a violation of constitutionalguarantees. Or if an act, vetoed by the President, has been repassed by a two-thirds majority of eachHouse, the Court still can declare the act repugnant to the Constitution. History presents but oneexample of the exercise of such power other than by an absolute monarch. The tribune at Rome,elected for a year, had an absolute veto upon any enactment. This powerful officer is said not even tohave had a house in which to administer his duties, but sat upon the benches in the open. In allsimplicity, standing for the great mass of unprotected Roman citizens against the power of thearistocracy, he had the power to declare the one word which would annul every proposed law of thegreat Roman Senate.Though not elected by the people and independent of the nation, with a permanent tenure of office, inthe last instance the Supreme Court has the right to prescribe the rules for the control of the othercoordinate departments of government. It is the constitutional judge of the powers of Congress as wellas of its own powers. "You have made a good Constitution," said a friend of Gouverneur Morris afterthe adjournment of the Constitutional Convention. "That," replied Morris, "depends on how it isconstrued." 112 This saying of Mr. Morris is true, because the exclusive right to interpret includes thepower to change. Says a leading writer on Constitutional Law: "It is one of Blackstone's maxims thatin every constitution a power exists which controls without being controlled, and whose decisions aresupreme. This power is represented in the United States by a small oligarchy of nine irremovablejudges. I do not know of any more striking political paradox than this supremacy of a nonelectedpower in the democracy reputed to be of the extreme type." 113Mr. Dicey says of this power conferred upon the Supreme Court, "That in a confederation like theUnited States the Courts become the pivot on which the constitutional arrangements of the country turnis obvious. Sovereignty is lodged in a body which rarely exerts its authority and has (so to speak) onlya potential existence ; no legislature throughout the land is more than a subordinate lawmaking bodycapable in strictness of enacting nothing but by-laws: the powers of the executive are again limited bythe constitution; and the interpreters of the constitution are the judges. The Bench therefore can and111

Elliot's Deb., vol. iv, p. 485.

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must determine the limits to the authority both of the government and of the legislature; its decision iswithout appeal; the consequence follows that the Bench of Judges is not only the guardian but also at agiven moment the master of the constitution." 114 That branch of government which is its own judge indetermining authoritatively for the people what are its own powers over the people, is absolute in itsnature.The sources of its power to declare a national statute unconstitutionalLeading writers on law have denied the power of the United States Supreme Court to declare acts ofCongress unconstitutional. 115 The power in the Court to declare a national statute unconstitutional wasfirst asserted in the masterly discussion in Marbury v. Madison by Chief Justice Marshall, but there theconclusion was reached by implication, and no claim was made of express authority in theConstitution. 116 Professor Lowell, in his work on "Democracy and the Constitution," says:"The Supreme Court of the United States could never have acquired its power of declaring a statuteunconstitutional in any other country, at least in any other than an Anglo-Saxon country." 117The English Parliament may change the powers and prerogatives of courts and even abolish them. 118It is doubtful whether the Federal tribunal of the German Empire, its only great appellate court, haspower to inquire into the constitutionality of a statute passed by the Reichstag and the Bundesrath andpromulgated by the Emperor, or even to inquire into the constitutionality of an act passed by one of thestates. Professor Lowell, speaking of this court, says: "It is certain that the courts have not in factexercised any general power of refusing to apply statutes on constitutional grounds." 119 In Belgium,jurists are said to claim that a law violating the Constitution ought to be treated by the court as void;still, during the whole period of Belgium's independence, judgment has never been pronounced uponthe constitutionality of an act of its Parliament. 120 Both the German Constitution and the BelgiumConstitution impose limitations upon the powers of the government.The French Constitution is not found in a single document, but in a series of distinct laws describingthe fundamental rights which the state is enjoined to respect. An act passed by the Chambers andpromulgated by the President will be held valid by every tribunal throughout the Republic. 121 TheFederal tribunal in Switzerland is bound by the Constitution to treat all federal legislation as valid. TheKingdom of Italy has a written Constitution limiting the powers of the government and the monarch. Itis the original Constitution of Sardinia expanded into the Constitution of the Kingdom of Italy. It has aSupreme Court, but this court cannot consider the constitutionality of a law which involves theconstruction of the Constitution. 122 Although the Austrian Constitution puts limitations upon the power

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of the Emperor and of the government, still the Federal Court has no power to question the validity of astatute which has been properly promulgated. 123The origin, however, of the theory that a court could declare an act unconstitutional was found in thehistory of our charter colonies. Their rights and powers, like the ordinary corporation, were determinedby their charter, and when they passed a law in excess of the legal powers conferred by their charter,its illegality could be determined by their local courts, with the right of appeal to the privy council ofEngland. After the establishment of the state governments and before the formation of the Constitution,legislative acts in two states, Rhode Island and North Carolina, were declared unconstitutional. By anact of the general assembly of Rhode Island, passed in May, 1786, provision was made for theemission of paper money. In June the Legislature prescribed that any person who should refuse toreceive the money in payment for goods on sale at the face value of the goods, or who should maketwo prices for such goods, one in paper and the other in silver, on conviction should be fined 200 forthe first offense. In August, 1786, the Legislature of Rhode Island passed a law that the offenses underthis act should be tried by special courts without a jury, by a majority of the judges present accordingto the law of the land, and that three members thereof should be sufficient to constitute a court.John Trevett tendered this money to John Weeden, a butcher, for meat, and when Weeden refused toaccept the money, Trevett sued for the fine. It was objected that the trial by jury was a fundamentalright in the State of Rhode Island, that the Legislature had no power to enact a law depriving a citizenof that right, and that the court could declare the act invalid. The court overruled this defense, and anappeal was taken to the Supreme Court of the state. But Rhode Island, unlike all the other states butConnecticut, had no written constitution in the modern sense, having continued after the Revolutionunder its colonial government. So the question before the higher court involved the invalidity, of thestatute because of its repugnancy to the provisions of the common law securing to the citizen the rightof trial by jury. While the five judges were considering this act, the excited people in the streets werebreathing forth their threats against them if they declared it invalid. Notwithstanding, they all agreedthat the act was void. The legislature threatened impeachment and refused to reeled them. No opinionwas written, but when the judges appeared before the legislature in October, 1786, on charges oftreason and misconduct, some of them gave as a reason for their decision that the defendant wasentitled to trial by jury according to the law of the land. 124 Here we have a case where an act wasdeclared invalid because it deprived the defendant, not of a constitutional guarantee, but of a rightsecured to him by the common law.The law of North Carolina provided for the sale, by a commission appointed by the legislature, oflands in that state belonging to the loyalists, and the payment of the money into the state treasury. Thepurchaser received a certificate from the commissioner making the sale in behalf of the state, statingthe time of sale and the payment; and if sued in ejectment he was entitled under the law of the state,upon making affidavit that he held the disputed property under a sale from the commissioner offorfeited estates, to dismiss the suit on motion. Mrs. Bayard, the plaintiff in a suit, was the heir of oneCornell, whose estates had been confiscated. The defendant had purchased her lands from thecommissioner, had received the certificate, and, when sued, presented the certificate to the court andprocured a dismissal of the action. A large number of other suits involving the same question werepending, and the constitutionality of the act was duly brought to the attention of the court on a motionto set aside the dismissal. The court in May, 1787, the same month when the Convention to frame the123124

Lowell, Gov. and Parties in Cont. Europe, vol. ii, p. 84.

Coxe, Judicial Power and Const. Legislation, pp. 234, 246, 249.

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Constitution of the United States was gathering at Philadelphia, held this act unconstitutional, saying:"By the constitution every citizen had undoubtedly a right to a decision of his property rights in a trialby jury. For that if the legislature could take away this right, and require him to stand condemned in hisproperty without a trial, it might with as much authority require his life to be taken away without trialby Jury, and that he should stand condemned to die without the formality of any trial at all," etc. 125And they declared that the act must stand as abrogated and without effect." William R. Davy, one ofthe framers of the Constitution, was the plaintiff's counsel in the case and, at the time of its decision inMay, 1787, was attending the Convention in Philadelphia.It was assumed by many of the members of the Constitutional Convention, as appears by theirdeclarations at that time, that the United States Supreme Court would have the power to declare actsunconstitutional. Section 2 of Article 6 of the Constitution states that "This Constitution, and the lawsof the United States which shall be made in pursuance thereof, and all treaties made, or which shall bemade, under the authority of the United States, shall be the supreme law of the land." We first observethat the laws referred to are declared to be the supreme law of the land only when made in pursuanceof the Constitution. The provision continues by declaring that "the judges in every State shall be boundthereby, anything in the constitution or laws of any State to the contrary notwithstanding." The words"the supreme law of the land " had a meaning established by five hundred years of English history, andfrom that meaning it well may be inferred that a law in pursuance of the Constitution bound the statesand individuals and courts, and all laws not in pursuance thereof were void.Before the Civil War reluctant to declare national statutes unconstitutionalWith great reluctance the United States Supreme Court approached the question of declaring a lawenacted by Congress unconstitutional. Only two such statutes were declared unconstitutional prior tothe Civil War. 126 In two other cases the Court refused to perform duties imposed upon them by lawwhich were not judicial in their character, but it was not until after the Civil War that the power ofdeclaring a law of Congress unconstitutional was freely exercised. It is too late now to urge that thispower, exercised for over a hundred years, does not exist. It would be rash, indeed, to contend that thissupreme mandate, which renders the United States Supreme Court the most absolute power inexistence, is without foundation. The danger attending the exercise of this power, however, is great. Itmatters not that the court calls it a judicial power, it is quite as much legislative in its nature. Thegrounds upon which it has been based, as stated in the opinions declaring laws unconstitutional, havebeen largely economic, political, or sociological. Public policy likewise has been invoked again andagain by learned Judges of the United States Supreme Court as a reason. In every opinion holding anact unconstitutional, you can find expression after expression tending to show that the views of thewriter as to government, political power, economic truth, or the effect of the act upon the publicinterests, have greatly influenced the decision. In about twenty-five cases the Supreme Court hasdeclared a United States statute repugnant to the Constitution, but in only a very few have the judgesbeen unanimous. In about two hundred cases they have declared the statutes of states forbidden by theprovisions of the national Constitution.When Marshall became the Chief Justice of the United States Supreme Court, there had been only twodecisions involving the question of the constitutionality of a state or national statute. During his termof office, from 1801 to 1835, the constitutionally of fifty-one acts was passed upon, and the great Chief125126

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Justice wrote the prevailing opinion in the greater number of these cases. His powerful mind, his terse,logical, graphic statement of a legal proposition, his strong personality, his acute intellect andmasterful character, directed the current of opinion in that court toward a liberal construction of thepowers of government. Never has a judge spoken from any court in this country, or probably in theworld, with such a clear ringing voice for the vindication of what he deemed the powers of the courtover which he presided. John Marshall's construction of the Constitution made the United States intruth one nation. He, indeed, forged the trenchant blade with which Abraham Lincoln slew the dragonof secession.Our reverence for courtsOur American people are given to believing that a law of Congress or of a state legislature is asovereign specific for all evils, and in like manner they always have had the utmost confidence incourts. We have been in the habit of ascribing to courts a sort of supernatural power to regulate arightthe affairs of the people, to restrain excesses, and to protect everyone in life and property. It is onlyoccasionally, when some decision comes down, which the common man by instinct knows to beviolative of his rights, that murmurs of discontent are heard.The courts were not always looked on in this way. When, in 1794, the United States Supreme Court, inChisholm v. Georgia, held that a state could be sued by a citizen of another state, the states werearoused, and proceeded quickly to bring about the passage of the eleventh amendment to theConstitution for their protection. Judge Samuel Chase, a very able but partisan Judge, appointed byPresident Washington as Associate Justice of the Supreme Court in 1796, was impeached in 1804 atthe instigation of John Randolph for arbitrary and oppressive conduct. He was tried in 1805, but wasacquitted. In 1803, Judge Calvin Pease, Judge of the third Circuit Court of Ohio, held that an act of thelegislature of that state, conferring jurisdiction upon a justice of the peace to try without a jury anaction where judgment was asked for more than $20, was unconstitutional because of the provision fora jury trial in the seventh amendment to the Constitution of the United States. His decision wasaffirmed. Not only Judge Pease, but also Judge Todd of the appellate court, who voted for anaffirmation of Judge Pease's decision, was impeached by the assembly of the State of Ohio. Each ofthem was arraigned before the Senate and tried upon the impeachment, but both were acquitted. 127The case of Green v. Biddle 128 created so much opposition in Kentucky, that an attempt was made toimpeach the judges of the state courts who had followed that decision in other similar cases.But the practice of deifying the courts and regarding-the Constitution as sacred commenced early inthe nineteenth century. As President Woodrow Wilson says, "The divine right of kings never ran amore prosperous course than did this unquestioned prerogative of the Constitution to receive universalhomage." 129 The people modified their state governments to correspond with the nationalgovernment. But the tendencies of democracy were so strong that gradually they elected theirgovernors and judges by popular vote instead of by the legislature as in Revolutionary times. Fromtime to time they also amended their constitutions, thus keeping in touch with the progressivetendencies of society, although the national Constitution continued from 1804 for over sixty yearswithout a change. Well would it be for the people if they were more watchful of the action of courts today, instead of permitting absorption in their own affairs to make them oblivious of how their dearest127

Cooley, Constitutional Lim., p. 194, note.

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rights are guarded. This era of gross materialism, when men are thinking only of becoming rich, is anera of danger to our institutions. A hundred times more dangerous than the wildest excesses of angrymen is the benumbing, deadening influence of materialism on the patriotism of the citizen.Of all systems of government the most difficult to establish and render effective is the federativesystem. Apparently simple, it is in practice the most complex, for it has to apportion the degree ofindependence and local liberty which should remain in the states with the amount of power delegatedto the central government, and to nicely adjust these relations. The United States Constitution createsno rights for the citizen, but simply provides for the apportionment of those which he ever has had. TheUnited States Supreme Court derives its judicial power from the Constitution, and can exercise nopower which is not conferred or necessary to the powers conferred, while the highest courts of thestates have original common-law jurisdiction over all domestic affairs, unless prohibited by the UnitedStates Constitution.It is to be observed that the state governments, in approving the Constitution, consented that the UnitedStates Supreme Court should have the final power to determine all questions when their rights shouldcome into conflict with the provisions of the Constitution, or the laws made in pursuance of it. In short,they have delegated to a court, created by the national government, the right to determine between theirinterests and the interests of that government; and it must be said to the credit of this august court that,until recently, it has exercised that power with great discretion and commendable impartiality. Mr.Justice Miller, in 1872, referring to the rights of the states and their relations to the nationalgovernment, very truthfully said: "But whatever fluctuations may be seen in the history of publicopinion on this subject during the period of our national existence, we think it will be found that thiscourt, so far as its functions require, has always held with a steady and an even hand the balancebetween State and Federal power, and we trust that such may continue to be the history of its relationto that subject so long as it shall have duties to perform which demand of it a construction of theConstitution or any of its parts." 130 This statement was undoubtedly true at the time it was made, butsince then the decisions of the United States Supreme Court, as to the power conferred upon Congressto control interstate commerce, have been steadily destroying the powers of the states. This tendencyculminated in the Lottery Case 131 which practically held that the national government, through thecontrol of commerce, possessed the police power of destroying a pernicious lottery. Mr. Root tells usthat this tendency will be carried still farther, and that sooner or later constructions of the Constitutionwill be found to vest the unexercised powers of the states in the national government. As the onlybinding constructions of the Constitution are those given by the Supreme Court of the United States,we assume that Mr. Root refers to that court as the power which sooner or later will make theconstructions necessary to vest the power sought in the national government. It was just such a use ofthe power of construction that some of the Conventions which adopted the Constitution feared. TheConvention of the State of New York, while adopting the Constitution, among other declarations, said:"That the jurisdiction of the Supreme Court of the United States or of any other court to be institutedby the Congress, is not in any way to be increased, enlarged, or extended by any fiction, collusion, ormere suggestion." 132

130

Slaughter House Cases, 16 Wallace, 82.

188 U. S., 321.132Elliot's Deb., vol. i, p. 329.131

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Danger that it may increase its powers by construction

Resorting to fiction to bring about a change of law has ever been a favorite method with courts.Interpretation which changes the law is just as effective as a constitutional amendment, and surely thesworn guardians of the law ought not to attempt to bring about such a change by construction. Yet weknow what human nature is and what history has taught us. Where the Constitution is interpreted by acourt from which there is no appeal, and which by its own decision can increase its own power, it is aptto invoke implied powers with considerable latitude. A strict construction of the Constitution is theconstant security of the people against tyrannical government. The rule which allows the United StatesSupreme Court to hold a statute unconstitutional requires that before it is so held it must be plainbeyond a reasonable doubt that the law considered is repugnant to the Constitution. Yet its decisions asto the unconstitutionality of national statutes have generally been made by a divided court. Romanlawyers, taking the twelve tables as a basis, worked out by the means of implication and construction,and analogy therefrom, the extensive system of law codified in the reign of the Emperor Justinian. Theimpelling forces to-day in our country are almost identical with those of the last fifty years of theRoman republic and the earlier years of the empire. It must not then be put down to idle fear orignorant suspicion, if intelligent men look with apprehension at the tendency in our day of the highestcourts to first conclude what they wish to decide, and then find reasons for the decision. The meanswhich they use to accomplish this is implication of powers, always so dangerous because unbounded.If admitted at all it is capable of the utmost extension. If the United States Supreme Court desiressooner or later to find constructions of the Constitution which will vest the power, spoken of by Mr.Root, in the national government they can easily accomplish the result.The Legal Tender casesThis all-powerful Court as yet has not manifested a fixed intent to construe the Constitution so as torob the states of their reserved rights, but they have alarmed the people in several cases where theyseem to have divided in their decision of legal questions upon preconceived opinions of public policy.Section 8 of Article 1 confers upon Congress the power "To borrow money on the credit of the UnitedStates; ... To coin money, regulate the value thereof and of foreign coin, and fix the standard ofweights and measures." By the Articles of Confederation, the general government had been allowed toissue bills of credit and to make them legal tender in payment of debts. The states at the same timepossessed concurrent powers, and, between the Federal government and the several states, millions ofdollars of paper money had been issued which had become of little or no value. This conditionprecipitated the very crisis which brought about the Constitution and thus deprived the states of suchpowers. When these clauses were inserted the members of the Convention were agreed, with twoexceptions, Mercer and Martin, of Maryland, that the opportunity had come to destroy forever thepower of both the national and state governments to make a bill of credit, issued by either, a legaltender in payment of a debt. The question was thoroughly discussed whether an express prohibition tomake such paper a legal tender was necessary, and, inasmuch as the government which they werecreating was one of enumerated powers, they all agreed that it was sufficient to withhold the power,since the Federal government could not exercise it unless expressly permitted by the Constitution."Thus," says Madison in his narrative of the proceedings, "the pretext for a paper currency, andparticularly for making the bills a tender either for public or private debts, was cut off." 133

133

Fiske, The Critical Period of American History, p. 296.

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From the day when the Constitution was finally adopted by the states until the Civil War all the leadingstatesmen and jurists, like Marshall, Webster, Story, and Curtis, had again and again declared theabsence of power in the national government to make anything but gold and silver coin a legal tenderin the payment of debts. When in the Civil War the banks suspended payments, Salmon P. Chase,Secretary of the United States Treasury, recommended to Congress the issue of United States notes, tobe made receivable for all loans to the United States and all government dues except duties on imports.He said: "The Secretary recommends, therefore, no mere paper-money scheme, but on the contrary aseries of measures looking to a safe and gradual return to gold and silver as the only permanent basis,standard, and measure of value recognized by the Constitution." Congress had the power to prescribethat these notes should be accepted in payment by the government, and in many ways could have aidedin giving them value as a circulating medium without making them legal tender.On February 7, 1870, the United States Supreme Court, in the case of Hepburn v. Griswold, announcedfrom the Bench its decision that the legal-tender acts of 1862 and 1863, as regards the payment ofdebts existing before their passage, were unconstitutional. Chief Justice Salmon P. Chase, JusticesNelson, Clifford, Greer, and Field concurred therein and Justices Swayne, Davis, and Miller dissented.By an act passed during President Johnson's administration, the number of judges of the SupremeCourt was reduced from nine to seven, for the purpose of depriving him of the right to fill thevacancies which were about to occur. Soon after President Grant's inauguration a new act restored thenumber to nine to take effect on the first Monday of December, 1869. On February 7, 1870, the day onwhich the decision affecting the legal-tender act was handed down, two vacancies existed. OnFebruary 18, 1870, the President appointed William Strong, of Pennsylvania, to fill one of saidvacancies, and on March 21, 1870, Joseph P. Bradley, of New Jersey, to fill the other.Of these appointments President Woodrow Wilson says: 134 "In December, 1869, the Supreme Courtdecided against the constitutionality of Congress's pet Legal Tender Acts; and in the following March avacancy on the bench opportunely occurring, and a new justiceship having been created to meet theemergency, the Senate gave the President to understand that no nominee unfavorable to the debatedacts would be confirmed, two justices of the predominant party's way of thinking were appointed, thehostile majority of the court was outvoted, and the obnoxious decision reversed." Mr. Rhoades reachesthe conclusion that there is no circumstantial evidence to show that the appointments of Judges Strongand Bradley were made with the intention of reversing this decision, 135 and he tells us that theappointments were sent to the Senate by the President on the very morning of February 7, 1870, beforethe decision, which had been made in December, 1869, was handed down. The decision of Hepburn v.Griswold, however, was made in conference November 27, 1869; and this might well have beenknown by Attorney-General Hoar, who cherished a bitter feeling- toward Chief Justice Chase, and whowas, we are told, instrumental in bringing about the new appointments. Upon the appointment of thenew judges, the Attorney-General immediately moved that two cases involving the constitutionality ofthe legal-tender issue be taken up and argued, notwithstanding the prior decision of the court. Thecourt, by the five judges who thereafter voted for reversal, instead of rebuking the Attorney-Generalordered that these cases be heard.On May 1, 1871, the two cases having been brought on for hearing before the court as reorganized, adecision was announced reversing the prior decision, and on January 15, 1872, the opinions were readin open court.1 The five judges who voted to hear the re-argument all concurred in this decision of134135

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reversal. Mr. Justice Strong, one of the new appointees, wrote the prevailing opinion, Mr. JusticeBradley, the other, writing a concurring opinion. Mr. Justice Greer, who had sat in the prior case ofHepburn v. Griswold, had retired from the court; but Chief Justice Chase and Justices Nelson, Clifford,and Field dissented from the decision. The prevailing opinion held that the power to issue these notescould be inferred from the powers which grow out of the aggregate of powers conferred upon thegovernment by the Constitution, or out of the sovereignty instituted by it.Legal precedents in law become rules of property and muniments of personal rights. It is a wellestablished rule that a court never should overrule its decision in a case affecting private rights ofproperty which has been followed for some period of time, because it has been relied on by people inexchanging values. "No man," said Sir William Jones, "who is not a lawyer would in many instancesknow how to act, and no man who is a lawyer would in many instances know how to advise, unless thecourts were bound by authority as firmly as pagan deities were supposed to be bound by the decrees offate." The people had relied upon the lack of power in the government to issue irredeemable papermoney as a legal tender, from the formation of the Constitution until the passage of the Legal TenderActs. The case of Hepburn v. Griswold was decided in February, 1870, and until May 1, 1871,business had been conducted upon the basis of that decision. The price of gold had steadily declined,notwithstanding the decision in the case of Hepburn v. Griswold, until May, 1871; and Mr. Rhoadestells us:"Had the country acquiesced in the decision of the court, and had Congress supplemented it bylegislation permitting the Secretary of the Treasury gradually to contract the greenbacks, speciepayments would have been reached by 1873 and the financial panic of that year postponed." 136But the United States Supreme Court did not stop with this decision. Once started in this course it waseasy to go to the end, and so in a case, 137 decided in March, 1884, the court finally determined that thereissue of the greenbacks, under an act passed in 1878, in a time of peace, there being no necessity fortheir reissue, should be upheld as an attribute to that sovereignty which appertains to all governmentsat all times. So by construction they finally arrived at the conclusion that the power to coin moneyincluded the power to stamp paper and declare it a legal tender in a time of peace. The reasoning onwhich this opinion rests is of interest, for if it be good the Constitution has no limitations, and it willavail nothing to examine carefully as to the powers delegated by the states and the people to thenational government. The court said: "The governments of Europe, acting through the monarch or thelegislature, according to the distribution of powers under their respective constitutions, had and have assovereign a power of issuing paper money as of stamping coin. This power has been distinctlyrecognized in an important modern case, ably argued and fully considered, in which the Emperor ofAustria, as King of Hungary, obtained from the English Court of Chancery an injunction against theissue in England, without his license, of notes purporting to be public paper money of Hungary." Andfrom this the power was implied to make government notes a legal tender in payment of private debts,as one of the powers belonging to the sovereignty of other nations and "not expressly withheld fromCongress by the Constitution."Until the time of this decision it had been supposed that the only sovereignty which the nationalgovernment had was conferred upon it by the express grants of the Constitution, together with suchpowers as were necessary and proper to carry those express grants into execution. Until this decision it136137

Rhoades, History of the United States, vol. vi, p. 266.

Juilliard v. Greenman, 110 U. S., 447-449.

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had never been suggested that the power of Congress arose from what was "expressly withheld fromCongress by the Constitution," but rather arose from what was expressly granted to Congress by theConstitution. Still this learned court, eight judges concurring, deliberately invoked the sovereignpowers of the Austrian Empire as the basis for inferring a like sovereignty in the United States; andthen emphasized the fact as an important one that the power to issue such notes was "not expresslywithheld from Congress by the Constitution," when in the Constitutional Convention the very questionwas discussed, with the result that those great lawyers and constructive statesmen determined it to beunnecessary to prohibit the United States from issuing paper money and making it a legal tender inpayment of debts, since the Federal government could not exercise a power unless it was expresslygranted in the Constitution. 138 If this kind of judicial reasoning is to prevail in the courts there isnothing to hinder the United States Supreme Court from holding that the government has inherentpowers. That doctrine once established the Constitution at one blow is reduced to blank paper, and thenour judges may commence to examine the exercise of power by absolute governments in the history ofthe world, as a basis for ascertaining what power is vested in Congress.The Income Tax casesSubdivision 1 of Section 8, Article 1, of the Constitution, empowers Congress "To lay and collecttaxes, duties, imposts, and excises, to pay the debts and provide for the common defense and generalwelfare of the United States; but all duties, imposts, and excises shall be uniform throughout theUnited States." Subdivision 4, Section 9, Article 1, provides that "No capitation or other direct tax shallbe laid, unless in proportion to the census or enumeration " directed by the Constitution. Anotherprovision of the Constitution prescribes that representatives and direct taxes shall be apportionedamong the several states according to their respective numbers. The Wilson Bill imposed a tax of twoper cent upon all incomes of more than $4,000, the tax to remain in force until January 1, 1900. Thisclause was passed in the House of Representatives by a vote of 204 to 140, and the whole bill waspassed by a vote of 182 to 106, sixty-one members not voting. Income taxes had been passed fromtime to time in the history of the country, especially during the Civil War, when eight of such lawswere enacted.The constitutionality of this act, so far as it imposed a duty upon incomes, was contested in the UnitedStates Supreme Court in a suit in equity by one Pollock against the Farmers' Loan and TrustCompany, 139 to prevent a threatened breach of trust by the defendant in the misapplication or diversionof its funds by the illegal payment from its capital of the income tax on its profits. Pollock was astockholder of the defendant, and he alleged that they threatened to pay the tax and thus impair hisinterest, and, as the payment would result in a multiplicity of suits, that he asked an injunction from theEquity Court enjoining the defendant from paying the tax. It was the claim of the plaintiff that theincome tax was a direct tax, and therefore must be apportioned among the several states according totheir respective numbers, and could not be imposed as a duty, impost, or excise uniformly throughoutthe United States upon annual incomes.By the Act of June 5, 1794, Congress laid a tax upon carriages for the conveyance of persons, and thequestion whether this was a direct tax within the meaning of the Constitution was decided at that timeby the United States Supreme Court. 140 Mr. Justice Wilson, who was one of the most prominent138

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members of the Convention framing the Constitution, Mr. Justice Chase, one of the ablest jurists of histime, Mr. Justice Patter-son and Mr. Justice Iredell, sitting in that court at that time, each expressed thereasons for their conclusions holding that the tax was an indirect tax or duty. Mr. Justice Patterson,who read the principal opinion, said:"I never entertained a doubt that the principal, I will not say the only, objects that the framers of theConstitution contemplated as falling within the rule of apportionment, were a capitation tax and a taxon land." This case had been cited by every text-book writer on the Constitution from that time untilthe Pollock case, as holding conclusively that a direct tax within the meaning of the Constitution wasonly a poll or capitation tax or a tax directly upon real estate; and that all other taxes were indirecttaxes, duties, imposts, or excises. For over a hundred years the United States Government had thusconstrued the law.Commencing with 1798, and extending down to 1816, five income taxes had been imposed, and inevery one of those cases the government had followed the decision in the Hilton case, the assumptionbeing that that decision had settled the law for this country. From 1861 to 1870, eight different statutesimposing taxes on income arising from both real estate and personal property had been enacted.Literally, hundreds of millions of dollars had been taken from the taxpayers through income taxes ofthe same nature as the provision in the Wilson Bill. In Springer against the United States, a casedecided in 1884, the question of the validity of one of the Civil War income taxes was involved. 141Springer was assessed on his professional earnings and on the interest of United States bonds. Herefused to pay, and, his real estate consequently being sold, the suit involved the validity of the tax as abasis for the sale. The United States Supreme Court held the tax valid.Notwithstanding this hundred years of unbroken history in its courts and in all of the departments ofgovernment, recognizing that a direct tax meant only a poll tax or tax on real estate, the United StatesSupreme Court by a majority of five to four declared the provision in the Wilson Bill unconstitutional.On April 8, 1895, a partial decision of the case was made, in which the court, consisting of eightmembers only, was evenly divided as to the constitutionality of the tax imposed upon an income frompersonal property, but a majority of the court determined that the tax was unconstitutional as to theprovision on incomes from real estate and municipal bonds. A final decision on the constitutionality ofthe law as regards personalty was deferred owing to the absence from illness of Mr. Justice Jackson. Afew weeks later the court rendered its decision, but in the meantime Mr. Justice Shiras, who on April8th had been favorable to the constitutionality of the law as to personal property, had changed hisopinion; so on May 20th the whole act was declared unconstitutional, Justices Harlan, Brown, Jackson,and White dissenting. In the early part of the last century the Irish courts relied for precedents upon thedecisions of the House of Lords and the other appellate courts of England. Mr. Plunket, the greatest ofthe Irish barristers of those days, was addressing Lord Manners on a question of law, when thefollowing colloquy took place: "Are you sure, Mr. Plunket," said Lord Manners, "that what you havestated is the law? " "It unquestionably was the law a half hour ago," replied Mr. Plunket, pulling out hiswatch, "but by this time the packet has arrived with a new batch of decisions and I shall not bepositive." 142"The Constitution," says Mr. Cooley, "is not to be made to mean one thing at one time and another atsome subsequent time, when the circumstances have so changed as perhaps to make a different rule in141142

Springer v. United States, 102 U. S., 586.

Shiel, Sketches of the Irish Bar, p. 158, note.

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a case seem desirable." Yet this was just what occurred in the Income Tax case. The meaning of adirect tax having been established by the men who framed the Constitution and their contemporaries,and that construction having- prevailed for over a hundred years, during which time the governmenttook from private persons hundreds of millions of dollars upon that construction, a majority of theUnited States Supreme Court deliberately overruled all their predecessors, basing their decision verylargely upon the definition of direct and indirect taxes, as laid down by Adam Smith and other politicaleconomists. The United States Supreme Court has practically reversed itself in many other cases inrecent days. 143 Again and again we find the Justice of that court who writes the prevailing opinionreasoning upon the result of a contrary decision, and invoking the rule of inconvenience and the effectof such decision upon the public interests. 144 These considerations which are purely questions of publicpolicy, and not of law, are to be considered by legislative bodies and not by courts, still they have beeninfluential in shaping judicial action.The result of the income tax decision was to withhold the burdens of taxation from a few hundredthousand wealthy men, and to place a considerable proportion of those burdens, through the indirecttaxation of the tariff, upon the heads of families working in factories, and upon farms all over thecountry. Ofttimes judges and great lawyers speak of the lack of intelligence and of the prejudice andpassion of juries, but these are not half so powerful as the preconceived opinions and the influence ofsocial relations upon the action of judges. The instinct of a great body of men of even a low grade ofintelligence frequently carries them not only to the popular but to the right side of a public question.Leading Englishmen, before the War, justly derided us for continuing the terrible evil of slavery solong in a democratic republic. But when the South marshalled her forces in rebellion without a ship onthe ocean, and with Jefferson Davis but just elected as President of the Southern Confederacy, Englandrecognized them as belligerents, and the sympathies of her men of wealth and social standing werewith the South from the beginning to the end of the war. At the same time millions of poor Englishworkingmen, out of work and starving because of the cotton famine which resulted from the war, gavetheir sympathies to liberty and to the Northern cause.France has recently adopted an income tax; and today all the leading countries of the civilized world,with the exception of the United States, Russia, Belgium, Hungary, and Portugal, are depending uponthis means of raising money for the support of government. The President, in his Jamestown speech,has recently given utterance to words which indicate that he hopes that the income tax decision of theUnited States Supreme Court will be reversed. Mr. Hannis Taylor, author of "Jurisdiction andProcedure of the United States Supreme Court," recently wrote of this decision: "Because by a singlevote the Supreme Court decided some time ago against the validity of a proportional income tax leviedin a certain form, there is no reason to believe that the Court, as it is now, or as it will be constituted inthe near future, will attempt to annul acts drafted in the proper form, imposing graduated taxes uponboth incomes and inheritances." Is it possible that anyone contemplates that the United States SupremeCourt will again reverse itself? Better a hundred times amend the Constitution, and make it clearbeyond doubt that the government has the right to impose an income tax. The Dred Scott decisionshattered the faith of thousands of honest and intelligent men in the United States Supreme Court.Every consideration of public policy requires that that Court shall not again reverse itself.143

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The Mankichi case, holding that indictment by grandjury and conviction by unanimous verdictin a murder case were not fundamental rightsBut other changes are going on in this august court, much more worthy of the careful examination ofthe citizen than either the legal tender or the income tax cases. In Downes v. Bidwell, 145 Mr. JusticeBrown uttered these significant words: "We suggest, without intending to decide, that there may be adistinction between certain natural rights, enforced in the Constitution by prohibitions againstinterference "with them, and what may be termed artificial or remedial rights which are peculiar to ourown system of Jurisprudence." A later case exemplifies what the learned judge meant by such adistinction. 146 That case was a petition by one Mankichi for a writ of habeas corpus to obtain hisrelease from imprisonment in Hawaii upon conviction for manslaughter. He alleged that Hawaii hadbeen incorporated into the United States; that, by the joint resolution of its incorporation, theadministration of the criminal law, as it existed at the time of the joint resolution, was to be continuedonly so far as it was "not contrary to the Constitution of the United States "; that he was arraigned onlyupon an information of the Attorney-General of the territory, and not on an indictment formanslaughter; and that he was tried by a common-law jury, but that only nine of the jurors were infavor of his conviction, the other three dissenting.It appears that, under the procedure existing in Hawaii at the time of the joint resolution incorporatingit into the United States, a person could be held for a capital or otherwise infamous crime on theinformation of the Attorney-General, without any presentment or indictment of a grand jury, and thathe could be convicted upon the verdict of nine of the twelve jurors voting guilty. The jury trialmentioned in the Sixth Amendment to the Constitution requires the unanimous verdict of the twelvejurors, 147 while the Fifth Amendment provides that, "No person shall be held to answer for a capital orotherwise infamous crime, unless on the presentment or indictment of a grand jury." These provisionsapply in full force to the courts of Hawaii.Mr. Justice Brown, of the United States Supreme Court, wrote the opinion of the Court on this appeal,and an extract from his opinion will disclose the most dangerous law ever laid down by a court ofjustice: "It is not intended here to decide that the words 'nor contrary to the Constitution of the UnitedStates' are meaningless. Clearly they would be operative upon any municipal legislation thereafteradopted, and upon any proceedings thereafter had, when the application of the Constitution would notresult in the destruction of existing provisions conducive to the peace and order of the community.Therefore we should answer without hesitation in the negative the question put by counsel for thepetitioner in their brief: 'Would municipal statutes of Hawaii, allowing a conviction of treason oncircumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will ofthe legislature and without process, or confiscating private property for public use withoutcompensation, remain in force after an annexation of the territory to the United States, which wasconditioned upon the extinction of all legislation contrary to the Constitution?' We would even gofarther, and say that most, if not all, the privileges and immunities contained in the bill of rights of theConstitution were intended to apply from the moment of annexation; but we place our decision of thiscase upon the ground that the two rights alleged to be violated in this case are not fundamental in theirnature, but concern merely a method of procedure which sixty years of practice had shown to be suitedto the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives,their property, and their well being."145

Downes v. Bidwell, 182 U. S., 282.

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If the right when upon trial under the United States statutes, whether in the District of Columbia, or inHawaii, to be held only on a presentment or indictment of a grand jury, and to be convicted only by aunanimous verdict of a jury of twelve men, is not a right fundamental in its nature, then it would bedifficult to select any right prescribed in the first eight amendments to the Constitution which isfundamental. The first eight amendments to the Constitution embody the Bill of Rights and, in themain, are principles of English liberty which existed three to five hundred years before the making ofthe Constitution. The people made those amendments to the Constitution because of their fear that thenational government in its courts would not recognize these bulwarks of liberty. And now the SupremeCourt has taken upon itself to determine that a person being tried for a crime in a territory of the UnitedStates, annexed with such a provision as we have recited, shall not have the protection which the fifthand sixth amendments of the Constitution secure to him; namely, that he shall be held on thepresentment or indictment of a grand jury and shall be tried by a common-law jury, which means ajury of twelve men, and convicted only upon their unanimous verdict.The increasing use CHAPTER PAGES of injunctions in criminal casesWhere does the United States Supreme Court get the power to decide what portions of the first eightamendments shall be extended to criminals being tried in our territories, and what portions shall bewithheld? By what power does it distinguish between those guaranteed rights, according as it maydeem them fundamental or not fundamental in their nature? Is such a discretion as that reposed in theUnited States Supreme Court?If the court, as now constituted, can allow a man charged with crime to receive the benefit of some ofthe amendments and withhold from him others, how long- will it be before some court will regard allof these amendments as not fundamental in their nature? The presiding Justice of the Court and threeof the Associates, Justices Harlan, Brewer, and Peckham, dissented from this startling doctrine.The court, in a more recent case,148 declared that the Philippine Islands have not been incorporated intothe United States; and that, therefore, the provisions of the amendments to the Constitution are notextended to those Islands; and it results that an inhabitant of those Islands could be convicted oftreason on circumstantial evidence, or on the testimony of one witness, notwithstanding theConstitution provides to the contrary. The property of an inhabitant likewise could be taken from himwithout due process of law and confiscated for public use without compensation. There is not a rightsecured to the citizen of the United States to-day of which the people of the Philippines could not bedeprived without protection from the fourteen amendments to the Constitution, because, forsooth, wehave not incorporated the Philippine Islands into the territory of the United States. We acquired thePhilippines through treaty, and the right to make the treaty and to acquire them came from theConstitution. But although we acquired these Islands through the Constitution, still the rule of theConstitution does not extend to them. We are in possession of the Philippines; we make the laws thatcontrol them, impose taxes upon them, fix the duties to be paid on the admission of imports to them,pass laws controlling their lives as completely as the life of the citizen in this country, and still we havenot incorporated them so that the Constitution, through which we acquired them, protects them.In every country the value set upon human life and liberty is the measure of the degree of itscivilization. It is perfectly evident that the value of the lives and the/liberties of that great proportion ofour people who are either poor or in moderate circumstances, has been decreasing with great rapidity148

Dorr v. United States, 195 U. S., 138.

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in recent years. The thing which the people prize most dearly will be most sacredly protected by thelaw, and the lawyer must be blind and deaf who is not aware that property is much more carefullyprotected to-day than life or liberty. Because of this worship of wealth it is practically impossible toconvict a man of great wealth of a crime. Just as in the Netherlands, in the time of Philip II, it took fiftywitnesses to convict a Bishop; and just as in England, in early times, the privilege of the clergyprotected learning, just so here to-day wealth and social position are regarded as so sacred that it isimpossible to execute the criminal laws against millionaire criminals. Along with this condition and asa direct result of this view of life, the courts, state as well as Federal, have been gradually impairingand destroying the barriers which our fathers erected against the exercise of tyranny.What would men in the days of the birth of the Constitution have thought had courts attempted todistinguish between guarantees in the Bill of Rights as fundamental and not fundamental? What wouldthey have thought had the United States Supreme Court in their day held that certain of thoseguarantees of liberty should be applied to protect citizens and that others should not be applied? Theresimply would have been a revolution, and that straightway. The disregard of those guarantees in theAlien and Sedition Laws practically brought about the destruction of the Federalist party, root andbranch, and put the Democratic party in power for forty years. Even seventy years later the Dred Scottdecision, practically deciding that the Missouri Compromise was unconstitutional and that there wereno limitations in our territory upon the use of the slaveholders of their property, brought about anotherrevolution. But the worship of wealth and the universal maddening struggle for its attainment in ourday has stilled the feelings of jealousy in men at the impairment of their liberties. If this tide ofmaterialism should ebb, and there should be an awakening to what is taking place, serious resultswould follow.Temporary injunctions, granted by a single judge, holding, upon mere affidavits, state statutesunconstitutionalIn no direction have our Federal courts extended their power so far in recent days as in theindiscriminate use of the granting of injunctions. The right to a temporary injunction formerly alwaysrested upon the inadequacy of a remedy at law, and the irreparable injury which would result from itsnot being granted. Where the act, which was sought to be enjoined, was a criminal act only, theinjunction was not granted. The right to an injunction was always based on apprehended injury to theproperty belonging to the person asking for the writ. 149 In the numerous cases where the employershave procured temporary injunctions against employees or labor unions, the right of property was theright to continue the relation of employer or employee, or assume or create such relation with anyparticular person or persons, or to carry on business of a particular kind or in a particular place, and thecourts construed such a right as a property right and as a basis for the injunction. For the purpose ofsustaining the writ in the Debs Case, 150 the United States Supreme Court held that the United Stateshad a property interest in the mails, and that the stoppage of trains would injure this property right, andwould also be an interference with interstate commerce. Obstruction of the mails and a conspiracyagainst interstate commerce is a crime. 151 It has also held that the receivers of a railroad companyactually may enjoin their employees for refusing to haul cars, or from even leaving the receivers'employ so as to cripple the road, or by any device to hinder its operation. 152 The intent to hinder the

Northern Pacific R R. v. Whalen, 149 U. S. , 162

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management of a railroad by the receiver has been held sufficient to authorize the issuing of atemporary injunction. 153In states where the legislatures have enacted statutes declaring saloons to be public nuisances, and thenexistence and continuance a crime, injunctions have been issued at the instance of the state, and theSupreme Court of the United States has sustained the doctrine. 154 To find any authority for such writsit would be necessary to go back to the days of the Court of Star Chamber, in the disorderly times thatfollowed the War of the Roses. 155 The result is that the punishment for crimes is gradually beingtransmuted into contempt proceedings, based upon mere affidavits, in the different branches of theUnited States Supreme Court. And even when it is the duty of the United States to prosecutecriminally, it uses its obligation as a foundation of the equitable remedy of a temporary injunction,thereby subverting the right of trial by jury. 156The execution of the laws has well been said to be far more important than the making of them.Respect for the courts is of the highest public importance, and any line of action on their part whichwill tend to create a bitter feeling on the part of the people toward them, should not be treated as oflittle importance, since our hope is not only in having laws honestly and ably interpreted by the UnitedStates Supreme Court, but in having the people believe that they are honestly and ably interpreted. Inview of this fact, it is of great importance for the court to avoid such an arbitrary exercise of its poweras will arouse great opposition. Such opposition has come from the free use of injunctions and willcome again.In many of the District and Circuit Courts of the United States some large corporate interest of a publicnature, under the claim that the state laws fixing rates are confiscating its property, in the first instanceprocures preliminary injunctions staying- the execution of these laws. In the State of New York, a fewyears ago, the legislature appointed a committee to investigate the cost of gas furnished by a singlecompany to the whole City of New York. That committee was represented by most eminent counsel. Amost thorough examination into the cost of gas was made, and a report sent to the legislature, whichpassed a law fixing, as a maximum price for gas in that city, eighty cents per thousand cubic feet. Thatact was approved by the governor, but its execution was stayed by a preliminary injunction procuredfrom a United States Judge, based upon affidavits, and the question of facts was referred to a singleMaster in Chancery, according to whose opinion the price fixed amounted to a confiscation of thedefendant's property. This finding is presumably correct; but it is, however, a significant fact that onJune 24, 1907, the day the Master filed his report, the Boston Consolidated Gas Company reduced theprice from eighty-five to eighty cents per thousand cubic feet, that being the fourth reduction thecompany had made during the last two years. The important consideration, however, is that suchproceedings, practically annulling state laws in the first instance upon mere affidavits, without ahearing or witnesses, and the reference of questions of fact involved to a single Master of Chancery,where hundreds of millions of dollars are at stake upon his decision, will in time become intolerable tothe people of every state where it occurs.In Alabama, North Carolina, and in other states, the United States Circuit or District Judges, in the firstinstance, have granted such injunctions. The state authorities in North Carolina have practically set atdefiance such action. As the matter becomes discussed more and more, unfortunate conflicts between153

In re Doolittle, 23 Federal Reporter, 544.

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the state and national governments are liable to arise. I submit with all candor that the practice ofgranting such temporary injunctions upon mere affidavits will become in-tolerable and will provokeunseemly and dangerous conflicts, and that Congress should enact a law forbidding its exercise.The review by the Federal Courts of the official action of state legislatures and of the InterstateCommerce Commission, where they have passed upon questions of fact, will be found in practice to bemost difficult and most unsatisfactory. Chief Justice Cooley, as the Chairman of the Commissionappointed by President Cleveland in 1887, said that the fixing of freight rates for the whole country bythe Commission would be a superhuman task. If the fixing of freight rates by a commission themembers of whom give their wholes attention to the investigation of such questions, and who hear thewitnesses and judge of their credibility, is a . superhuman task, how much more difficult is the task oofthe court which sees the witnesses upon paper only? In a case years ago, Mr. Justice Brewer, indiscussing the fixing of value of railway property and the justice of rates imposed by a statecommission, said:"No more difficult problem can be presented than this." 157Will the Federal Courts, with only the records before them, without hearing the witnesses, without theadvantage of the thousand little indications of truth and falsehood that can be appreciated only by thosepresent during the entire investigation, attempt to determine values? Well may it be said that such atask is beyond the ability of any court to perform with justice.Usurpations of power on the part of the executive and of Congress have been growing more frequent inrecent days. The Constitution has conferred such vast powers upon the United States Supreme Courtthat it would seem that it should be satisfied to construe its powers so strictly, that the states, who haveno authority over its action and who have surrendered to it the final arbitrament of all their rights,should find no real cause for discontent with its decisions. Still, every lawyer, acquainted with itsdecisions, especially in recent years, is alarmed at the advancement of centralization. "For thirtyyears," said Senator Bailey, of Texas, in the United States Senate on April 10, 1906, "the people of thiscountry have been accustomed to see the courts exercise arbitrary and extraordinary power: and a newgeneration of lawyers have come to the bar who think it treason and who call it anarchy to restrainthose powers." The Supreme Court should be placed by its exalted position far above party strife andfar above the desire to exercise arbitrary power. Its careful observance of constitutional limitationswould be a beneficial example not only to the other departments of government but to the highestcourts of all the states.

157

Ames v. Northern Pac. Ry. Co., 64 Fed. Rep., 165, 173.

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VII TREATY POWER AND STATE RIGHTS

"Above all nations is Humanity."GOLDWIN SMITH."The peace of the nation and its good faith and moral dignity indispensably require that all state lawsshould be subject to the supremacy of treaties with foreign nations. ... It is notorious that treatystipulations were grossly disregarded by the states under the Confederation. ... It was probably toobviate this very difficulty that this clause was inserted in the Constitution; and it would redound to theimmortal honor of its authors if it had done no more than to bring treaties within the sanctuary ofjustice as laws of supreme obligation."STORY.

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CHAPTER VII TREATY POWER AND STATE RIGHTS

A treaty is the supreme law of the land, binding all the statesMUCH has been written recently with reference to the rights of the Japanese pupils, in the publicschools in San Francisco, under the treaty of 1894 between our country and Japan. The San Franciscoaffair is but one of many incidents growing out of treaty rights, and is not so material as the generalquestion of the rights of emigrants from other countries which have treaties with the United States,securing to their people the privileges of the citizens of this country. At the rate of about 1,000,000 ayear such people have been coming to our country for many years and will continue to come. In themain they are the most helpless of our population and are the most in need of the protection of ourlaws. No change in our country is so apparent as the difference between the way these poor immigrantswere looked upon thirty or forty years ago and to-day. Frequently in our courts one is stronglyimpressed with the inability of many of the people from foreign lands, especially from Italy, Hungary,Russia, and China, to procure protection for their rights. What rights they have under treaties, andwhether those guarantees in the treaties can be violated with impunity by state authorities, should becarefully examined and determined. Such a careful examination leads to the conviction that all treatiesbetween the United States and a foreign country, securing to the citizens of the foreign country uponemigration to our shores the rights which we accord to our own citizens, is as much a part of the law ofevery state of the Union as though the constitution of each state had secured the same rights to suchimmigrants.The provision of the Constitution which secures this right is found in Article 6, subdivision 2, asfollows:"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and alltreaties made, or which shall be made, under the authority of the United States, shall be the supremelaw of the land; and the judges in every State shall be bound thereby, anything in the constitution orlaws of any State to the contrary notwithstanding." Mr. George Ticknor Curtis says of this provision:"It is a remarkable circumstance that this provision was originally proposed by a very earnest advocateof the rights of the States Luther Martin. His design, however, was to supply a substitute for apower over State legislation, which had been embraced in the Virginia plan, and which was to beexercised through a negative by the national legislature upon all laws of the States contravening, intheir opinion, the Articles of Union or the treaties subsisting under the authority of the Union. Thepurpose of the substitute was to change a legislative into a judicial power, by transferring from thenational legislature to the judiciary the right of determining whether a State law supposed to be inconflict with the Constitution, laws, or treaties of the Union should be inoperative or valid." 158In construing constitutions and their provisions it is an elementary rule that you can consider thehistory of the times when the constitution was formed and the evils which it was intended to correct toascertain the meaning of the language. 159 Even under the Confederation the exclusive right to maketreaties was in the Federal government, and at the time the Constitution was formed the states had notbeen accustomed to act as sovereign commonwealths in international affairs. The treaty of peace ofParis in 1883, between the United States and the English government, provided that the Americanloyalists, whose property had been confiscated by various state governments, should be not only158159

George Ticknor Curtis, Const. History of the U. S., 2d ed., p. 554.

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indemnified for their losses but should be secured in the future; and it also provided that allimpediments to the collection of private debts from Americans to British creditors should be removed,and that those debts should be paid by the American debtors in pounds sterling. The people wereindignant that their government should have made these stipulations in the treaty. Clergymen cried outagainst the tories from their pulpits; bills in different states were passed disfranchising them andconfiscating their estates; ironclad oaths were required of them. A trespass act in New York allowedthe patriot owners of property who had left the state during its occupation by the British, to recoverfrom the loyalists who had occupied their property damages for its use in an action of trespass. Thedifferent states not only refused to obey the treaty, but after its adoption, as well as during theRevolutionary War, they passed acts in their legislatures allowing a debtor to deposit the paper moneyof the time, of little value, in court, or in some states with the Commissioner of Loans or Claims, to theamount of his debt to a British creditor; and the law provided that upon such deposit a certificateshould be given to him which should be regarded as a satisfaction of his indebtedness. If the Britishcreditor procured a judgment against the debtor, collection upon execution was made impossible bystay laws.The treaty had provided that they should recognize the rights of loyalists to their property, but insteadsome of the states passed confiscation laws. In every way of which the people of the states couldconceive they robbed the loyalists of their property, drove them from the country, resisted the paymentof debts to English creditors, and made a nullity of the treaty. It was because of such action that theBritish refused to surrender the forts which they occupied on our frontier. The performance of a treatydepends upon the honor and the honesty of the nations which enter into it, as there is no vindication ofthe rights of the parties making it except through damages for its violation or by war.The facts establishing this contentionWhen we consider these facts we can see that the statesmen of those times, in framing the Constitution,naturally would have made provisions whereby treaties made by the nation could not be violated by thestates. That they did make such provision is very clear. On March 21, 1787, about two months beforethe meeting of the Convention to frame the Constitution of the United States, Congress passed aresolution which reads: "Resolved, That the legislatures of the several states cannot of right pass anyact or acts, for interpreting, explaining, or construing a national treaty or any part or clause of it; norfor restraining, limiting, or in any manner impeding, retarding, or counteracting the operation andexecution of the same, for that on being constitutionally made, ratified, and published, they become invirtue of the confederation, part of the law of the land, and are not only independent of the will andpower of such legislatures, but also binding and obligatory upon them." 160On April 13th, one month and one day before the meeting of the convention to draft the Constitution ofthe "United States, the representatives of the states, in Congress assembled, prepared a letter to thestates asking each of them to enact identical laws of the following frame: "Whereas certain laws orstatutes made and passed in some of the United States are regarded and complained of as repugnant tothe treaty of peace with Great Britain, by reason whereof not only the good faith of the United Statespledged by that treaty has been drawn into question, but their essential interests under that treatygreatly affected. And whereas justice to Great Britain as well as regard to the honour and interests ofthe United States require that the said treaty be faithfully executed, and that all obstacles thereto, andparticularly such as do or may be construed to proceed from the laws of this state be effectually160

Journals of Congress, ed. of 1801, vol. xii, p. 24, March 21, 1787.

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removed. Therefore, Be it enacted by ... and it is hereby enacted by authority of the same, that such ofthe acts or part of acts of the legislature of this state as are repugnant to the treaty of peace between theUnited States and his Britannic Majesty, or any article thereof, shall be and hereby are repealed. Andfurther, that the courts of law and equity within this state be, and they hereby are directed and requiredin all causes and questions cognizable by them respectively, and arising from or touching the saidtreaty, to decide and adjudge according to the tenor, true intent, and meaning of the same, anything inthe said acts, or parts of acts, to the contrary thereof in any wise notwithstanding." 161 The letter whichaccompanied this proposed law stated that it was drafted in a general form, repealing all acts or clausesin said laws repugnant to the treaty, because the business of determining what acts and clauses wererepugnant to the treaty would be turned over to the judicial department, and "the courts of law wouldfind no difficulty in deciding whether any particular act or clause is contrary to the treaty."Now Madison, who more than any other member of the Constitutional Convention guided its action,when a member of Congress was instrumental in bringing about the passage of this resolution ofMarch 2ist and drafted the proposed law of April 13th for the states. Gorham was not only a memberof that Congress, but he was one of the framers of that very clause of the Constitution of the UnitedStates which we have cited above, and also a member of the first committee of five which reported theoriginal draft of the Constitution. Johnson, the Chairman of the second committee of five, andHamilton and King, members of the committee which reported the revised draft of the Constitution,were also members of the Congress which in March and April passed the above resolution andprepared the proposed law.The original clause adopted by the Constitutional Convention with reference to the treaty-makingpower is as follows: "This Constitution, and the laws of the United States made in pursuance thereof,and all treaties made, or which shall be made, under the authority of the United States, shall be thesupreme law of the several states and of their citizens and inhabitants, and the judges in the severalstates shall be bound thereby in their decisions, anything in the constitutions or laws of the severalstates to the contrary notwithstanding." 162 The second committee of five, which gave us the final draftof the Constitution, struck out the words "several states and of their citizens and inhabitants," and leftthe law reading, "shall be the supreme law of the land." The words "supreme law of the land or a partof the law of the land " is an expression taken from the law of nations; and was especially used in thecommon law, with reference to treaties, as a law which could not be affected by the law of thelegislature, but prevailed as the superior law throughout the extent of the nation entering- into thetreaty. Every lawyer in the Constitutional Convention was undoubtedly familiar with Blackstone'swords, "In arbitrary states this law " (i. e., the law of nations) "whenever it contradicts or is notprovided for by the municipal law of the country, is enforced by the royal power; but since in Englandno royal power can introduce a new law, or suspend execution of the old, therefore, the law of nations" (whenever any question arises which is properly the object of its jurisdiction) "is here adopted in itsfull extent by the common law and is held to be a part of the law of the land." 163In the case of Trevett v. Weeden the "law of the land " of Rhode Island was involved. Rhode Islandhad no written constitution, yet her legislature had declared that the refusal to accept the paper moneyissued in 1786, in payment for goods purchased, should be regarded as a crime; and that the personscharged with such crime should be tried before three magistrates without a jury, and that they might befound guilty by a majority of the judges present according to the laws of the land. The Supreme Court161

Journals of Cong., ed. of 1801, vol. xii, p. 35.

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of that state held that this was not according "to the law of the land," as the right of trial by jury was asuperior right which no statute of a state could destroy; and this was held in a state which had nowritten constitution in the modern sense at the time the law was passed and the decision made.In the next year, at Newbern, N. C., in the case of Bayard v. Singleton, the supreme court of that stateheld that the act which permitted a purchaser of confiscated estates from the Commissioner of theState, when action was brought against him by the real owner to recover possession of the lands, topresent his certificate of purchase from the Commissioner and move that the case be dismissed uponhis affidavit filed, was not "the law of the land," because it failed to give the plaintiff the right of trialby jury which was part of the "supreme law of the land." Eight of the different states in their writtenconstitutions expressly mentioned the "supreme law of the land " as being superior to any law whichcould be passed by the legislature.On January 16, 1788, General C. C. Pinckney, speaking in the South Carolina Convention for theadoption of the Constitution, contended that even the Articles of Confederation bound the people of thedifferent states by a treaty as well as does the Constitution of the United States, saying: "Indeed, thedoctrine that the king of Great Britain may make a treaty with a foreign state, which shall irrevocablybind his subjects, is asserted by the best writers on the laws and constitution of England particularlyby Judge Blackstone, who, in the first book of his Commentaries (ch. vii, p. 257), declares 'that it is theking's prerogative to make treaties, leagues, and alliances with foreign states and princes, and that noother power in the kingdom can legally delay, resist, or annul them.' If treaties entered into byCongress are not to be held in the same sacred right in America, what foreign nation will have anyconfidence in us? Shall we not be stigmatized as a faithless, unworthy people, if each member of theUnion may, with impunity, violate the engagements entered into by the federal government? Who willconfide in us? Who will treat with us if our practice should not be conformable to this doctrine? . . . Icontend that the article in the new Constitution, which says that treaties shall be paramount to the lawsof the land, is only declaratory of what treaties were, in fact, under the old compact. They were asmuch the law of the land under that Confederation, as they are under this Constitution; and we shall beunworthy to be ranked among civilized nations if we do not consider treaties in this view, . . .Burlamaqui, another writer of great reputation on political law, says: 'that treaties are obligatory on thesubjects of the powers who enter into treaties; they are obligatory as conventions between thecontracting powers; but they have the force of law with respect to their subjects.'" 164The delegates from the different states in the Constitutional Convention well understood that thisprovision in the Constitution as to treaties was to be the paramount law of the whole land, binding thecitizens and the legislature of every state just as effectively as it bound the national government. In theNew York Convention, Lansing, who was a member of the Convention framing the Constitution,portrayed the dangers of putting- such a power in the hands of the executive and the Senate, andoffered this resolution: "Resolved, as the opinion of this committee, that no treaty ought to operate soas to alter the constitution of any state ; nor ought any commercial treaty to operate so as to abrogateany law of the United States." 165

164165

Elliot's Deb., vol. iv, pp. 278, 279.

Elliot's Deb., vol. ii, p. 409.

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Calhouns opinionForeign treaties, as a rule, for reasons which will be apparent on reflection to everybody, always havebeen intrusted to the king, the president, or the head of the nation. John C. Calhoun, in the House ofRepresentatives on January 8, 1816, referring to our obligation to act with the rest of the world througha single head, said: "The enumeration of legislative powers in the Constitution has relation, then, not tothe treaty-making power, but to the powers of the states. In our relation to the rest of the world the caseis reversed. Here the states disappear. Divided within, we present, without, an exterior of undividedsovereignty. The wisdom of the Constitution appears conspicuous. When enumeration was needed,there we find the powers enumerated and exactly defined; when not, we do not find what would bevain and pernicious to attempt. Whatever, then, concerns our foreign relations, whatever requires theconsent of another nation, belongs to the treaty power can only be regulated by it; and it iscompetent to regulate all such subjects, provided and here are its true limits such regulations arenot inconsistent with the Constitution." 166 This is the language of the great expounder of state rights;but in it we see not a word about the United States having the right to make treaties only so far, andupon only such subjects as are delegated by the people to Congress. The only limitation which hestates is that the treaty regulations must not be inconsistent with the Constitution.That Mr. Calhoun, who championed the cause of state rights, did not believe for one moment that atreaty was not a law controlling the different states and all of their inhabitants as effectually as itcontrolled the national government itself is well seen in the following statement of his views.According to his opinion, the only limitations on the treaty-making power were as follows: First, It islimited strictly to questions of inter alios, "all such clearly appertain to it." Second, "By all theprovisions of the Constitution which inhibit certain acts from being done by the Government or any ofits departments." Third, "By such provisions of the Constitution as direct certain acts to be done in aparticular way, and which prohibit the contrary." Fourth, "It can enter into no stipulation calculated tochange the character of the Government, or to do that which can only be done by the Constitutionmaking power; or which is inconsistent with the nature and structure of the Government or the objectsfor which it was formed." 167From the above discussion we reach the conclusion that the treaty power, as expressed in theConstitution, is unlimited, except by those restraints which are found in the Constitution against theaction of the general government or its departments, and those arising from the nature of thegovernment itself. We could not by treaty change the character of our government, cede a portion ofour territory, or make any fundamental changes thereof. But with these exceptions every provision of atreaty made with a foreign government is as binding upon the citizens of each state as a provision oftheir own constitution, or an act of their legislature authorized by their constitution. 168The recent contention of the State of California, wherein it is claimed that the reserved rights of thestates cannot be affected by the treaty power, has not a particle of foundation. Of course the power ofmaking treaties comprehends only those objects which are usually regulated by treaties and cannot beotherwise regulated. But within that limitation the provisions of a treaty fixing the rights of immigrantsfrom foreign lands is as binding upon the people of every state, and upon the states themselves, aswould be the constitution of the state or the laws made pursuant thereof by the legislature. And the166

Elliot's Deb., vol. iv, p. 464.

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whole talk which we have seen in the newspapers in recent days over the reserved rights of California,and her right to disregard a treaty of the United States, has not a particle of foundation. If any questionwas ever put beyond doubt by a uniform course of decisions in the United States Supreme Court,almost from the date of the Constitution down until the present day, it is the above proposition.The word "treaty " at the time of making the Constitution had a distinct and well-defined meaning, andcovered the agreement between the sovereign powers of two governments regulating, among otherthings, the status of their citizens emigrating from the country of the one to the country of the other.That power had always been exercised by the king, or president, or the single supreme one-man powerof any government, or, when such a power did not exist, by its legislature.The whole of the treaty-making power was conferred upon our national government, for theConstitution provides that "No state shall enter into a treaty, alliance, or confederation."The decisions of the courts unanimously sustain this contentionAs early as 1796 the question arose as to the effect of the treaty of peace with Great Britain, madeunder the Confederation in 1783, upon laws enacted prior as well as subsequent to the treaty by theState of Virginia. At the time of the making of that treaty the merchants of Virginia were largelyindebted to British creditors. Most of those debts arose prior to the commencement of theRevolutionary War, and the war suspended the running of the statute of limitations. The treaty of 1783recognized the legality of such claims, and provided that they should be paid, not with the papermoney of the colonies, but with gold and silver, the currency of the world. Virginia, among otherstates, passed a law permitting the debtor to pay the amount of the debt in paper money to theCommissioner of Loans, whereupon he should be given by the Commissioner a certificate of payment,which the law provided was satisfaction of the debt. A defendant, Hilton, had complied with thisstatute and procured his certificate, and the sufficiency of that certificate as against the treaty wasdirectly involved. The United States Supreme Court, 169 with only one dissenting Judge, held, thatunder the Confederation, as well as under the Constitution, the treaty was the supreme law of the land,and that the statute of Virginia was void, saying:"A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a statelegislature can stand in its way." The creditor was allowed to recover the full amount of his claim,notwithstanding the payment by the debtor of the full amount thereof in paper money to the VirginiaCommissioner.Then followed a large number of cases in which, by the statutes of the different states, an alien wasprohibited from taking title by descent and sometimes by devise; other cases also, involving the rightsof loyalists and their devisees to lands in the different states where the states had confiscated theirtitles. All these matters, as the reader will see, were matters entirely of domestic law, the control ofwhich the states had reserved absolutely to themselves. No grant of power to the national governmentcovers a single one of them, and they were matters peculiarly within the control of domesticlegislation. And yet the Federal co-urts and the state courts, in numerous cases, held that treaties givingto aliens, or to grantees, heirs, or devisees of a loyalist, rights to real estate, in the very teeth of state

169

Ware v. Hilton, 3 Dallas, 211.

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statutes to the contrary, were controlling. 170 In Hauenstein v. Lynham, 171 the United States SupremeCourt said:"It must always be borne in mind that the Constitution, laws, and treaties of the United States are asmuch a part of the law of every state as its own local laws and constitution. This is a fundamentalprinciple in our system of complex national polity," citing many cases.Mr. Butler, in his work on The Treaty-Making Power, summarizes the holding of the cases as follows:"First, That the treaty-making power of the United States, as vested in the central government, isderived not only from the powers expressly conferred by the Constitution, but that it is also possessedby that government as an attribute of sovereignty, and that it extends to every subject which can be thebasis of negotiation and contract between any of the sovereign powers of the world, or in regard towhich the several states of the Union themselves could have negotiated and contracted if theConstitution had not expressly prohibited the states from exercising the treaty-making power in anymanner whatever and vested that power exclusively in and expressly delegated it to the Federalgovernment. Second, That the power to legislate in regard to all matters affected by treaty stipulationsand relations is coextensive with the treaty-making power, and that acts of Congress enforcing suchstipulations which, in the absence of treaty stipulations, would be unconstitutional as infringing uponthe powers reserved to the states, are constitutional and can be enforced even though they may conflictwith state laws or provisions of state constitutions. Third, That all provisions in state statutes orconstitutions which in any way conflict with any treaty stipulations, whether they have been madeprior or subsequent thereto, must give way to the provisions of the treaty, or act of Congress based onand enforcing the same, even if such provisions relate to matters wholly within state jurisdiction."The authority for state rights contentionThere are certain cases which do not seem at first sight to be in accord with the cases cited. Thus, ChiefJustice Taney says 172 that the treaty-making power of the United States, in order to be legitimately andconstitutionally exercised, must be employed in full recognition and subordination to the constitutionalpowers of the several states; although the treaty-making power, in carrying out the purposes anddesigns of the framers of the Constitution, excludes the states from all intercourse with all foreignnations, still this power is of no higher order than any other power of the Federal government, and thatall must be exercised in full recognition and subordination to the constitutional rights of the severalstates. 173 But all these remarks will be found unnecessary to the decision of the particular case beforethe court, and, in view of the many authorities to the contrary, the rule would seem to be that if thesubject of the treaty be a subject of international diplomacy, it not only may contravene the statute of a170

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state but it becomes the absolute law of that state. Treaties are entitled to a liberal construction in favorof those claiming under them. 174 If, therefore, the people of any other country are secured privilegesand immunities in our own country by virtue of a treaty, the provisions of that treaty, if admitting oftwo constructions, the one narrow, the other liberal in its nature, the latter is always to be preferred.Difficulty with Italy over killing of her citizens by mob at New OrleansIn March, 1891, a number of Italian criminals in New Orleans murdered the Chief of Police of thatcity. He had been especially active in following them up in their crimes, and in revenge therefor, at agiven signal in the night time given by an Italian boy, he was shot and killed. Nine of the Italianssupposed to have been guilty of the offense were brought to trial. The jury acquitted six of them anddisagreed in the case of the other three. On the night following the end of this trial a mob broke into theprison, took out the Italian prisoners and shot them. The Italian government, through its minister,demanded that the lynchers should be punished and that an indemnity should be paid. Mr. Blaine, whowas at that time Secretary of State, in answer to this demand took the position that the United Statesgovernment had no local jurisdiction in Louisiana, but that the courts of that state were open to theItalian government for prosecution. He assured the Italian minister that the national government wouldurge the state government to institute criminal proceedings against the leaders of the mob. The Italianminister,Baron Fava, not satisfied with this answer, left Washington without any notice to our government andreturned to Italy, and the American minister at Rome left Italy. It was afterwards ascertained that onlythree of the nine Italians killed were subjects of the King of Italy, the rest having been naturalized inthis country, and the matter was adjusted by the payment of $25,000 to the relatives of the men killed.This attitude of our government was alleged to have been taken because Congress had passed nostatute making the offense a crime and prescribing the punishment therefor. Chief Justice Marshall, inFoster v. Nielson, 175 says: "Our Constitution declares a treaty to be the law of the land. It is,consequently, to be regarded in courts of justice as equivalent to acts of the legislature, whenever itoperates of itself without the aid of any legislative provision." Undoubtedly the relatives of themurdered Italians could have enforced a civil remedy in the United States court, and in the courts ofLouisiana, against the persons connected with their murder. The difficulty with enforcing a criminalproceeding on the part of the national government is that the national courts have no common-lawjurisdiction of crimes, their jurisdiction depending absolutely upon national statutes prescribing thecauses for which convictions can be obtained, and also the punishments which may be inflicted Thereis no question but that the United States government can pass a statute making such an act a crime andenforce it. 176Political leaders allow violent treatment of aliens for party reasonsThe national government, however, has never shown any great anxiety to enforce the treaty rights of itsalien population. Its attitude toward the State of California in the recent matter was by no means sostrenuous as was shadowed forth in the message of the President. In many states there exists a bitterfeeling on the part of the people toward the alien population. It is easy for demagogues to fan that174

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feeling into a flame of passion, and it is a most common occurrence for the aliens' rights to be violated.The reason of this impotency is very apparent to one who appreciates the importance to politicalparties of securing the votes of the people of the states. The voting population of the state is generallyhostile to the alien population. Some of them regard aliens as taking away their jobs. They are turnedaway from them in many cases by their customs and manners of life. They regard them as merelytransient people ready to return to their own country when they have accumulated any property.Injustice toward them under such circumstances is very common.The United States government, in support of treaty rights, can easily pass statutes prescribing the actswhich are criminal on the part of the citizens of states against their alien population and fixing thepunishment upon conviction, if it would. It likewise has the power to protect their rights with nationaltroops. In the Debs Case, Mr. Justice Brewer, speaking with reference to the United States governmentdepending upon the states for the enforcement of the national laws, said: "There is no such impotencyin the national government. The entire strength of the nation may be used to enforce in any part of theland the full and free exercise of all national powers ; and the security of all rights intrusted by theConstitution to its care. The strong arm of the national government may be put forth to brush away allobstructions to the freedom of interstate commerce, or the transportation of the mails. If the emergencyarises, the army of the nation, and all its militia, are at the service of the nation to compel obedience toits laws."Notwithstanding that the national government has this power, our alien population, protected fully bytreaties, quite frequently are assaulted by mobs and their rights destroyed or imperiled, and littleopportunity is given in the United States courts for redressing the wrongs. These alien laborers, in thelast twenty years, have constructed thousands of miles of railway, and tens of thousands of miles ofroads and streets. In the main, they are ignorant of our language, ignorant of our laws, subject toimposition, and helpless in the enforcement of their rights in the courts. We owe it to them, and weowe it still more to ourselves, to protect them. The national government ought to see to it that laws arepassed protecting them from injuries. The Queue Case in California, the imprisonment of aconsiderable number of Chinamen in Boston a few years ago for the purpose of ascertaining if each ofthem had certificates, the ruthless treatment extended to Italians, Hungarians, and Chinamen all overour country, are a disgrace to us, an injury to us in foreign countries, and demand immediate remedialaction on the part of the national government.The California school statuteThe school law of California passed in the year 1903 provides that "The trustees shall have the powerto exclude all children of filthy or vicious habits, or children suffering- from contagious or infectiousdiseases, and also to establish separate schools for Indian children and for children of Mongolian orChinese descent; when separate schools are established, Indian, Chinese, or Mongolian children mustnot be admitted into any other school." 177 The school board of San Francisco, pursuant to this statute,passed an order under date of October 11, 1906, requiring all pupils of Mongolian descent in the city toattend the oriental school on Clay Street, in the burned section of the city. The Secretary of Commerceand Labor, in his report to the President of November 26, 1906, said: "If the action of the Board stands,then, and if no schools are provided in addition to the one mentioned, it seems that a number ofJapanese children will be prevented from attending the schools and will have to resort to privateinstruction."177

School Law of California, Art. X, Section 1662.

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It is said by United States Senator Fulton, of Oregon, 178 that the Japanese excluded from the publicschools provided for white children in San Francisco were very largely adults who, because they werebeginners, necessarily entered the primary grades, and, in consequence, were brought into intimateassociation with the young white children of those grades. This is urged as a reason why the schoolboard had the right in their discretion to relegate to the oriental school on Clay Street ninety-threeJapanese students who attended the various schools in that city from July, 1906, until the followingOctober. There is considerable force in this contention. The state is under no legal obligation to createschools even for its native children; and it has been held that it is within its power and discretion, andnot in violation of the Fourteenth Amendment to the Constitution, to create separate schools fornegroes, affording them the same opportunities for education in those schools as it does the whitechildren. 179The treaty provides that "As respects rights of residence and travel, the possession of goods and effectsof any kind, the succession to personal property and the disposal of property of any sort, the citizens orsubjects of each country shall enjoy in the other the same privileges, liberties, and rights as, and to besubject to no higher imposts and charges than, native subjects or citizens of the most favored nation." Itwould seem that the rights of residence, without any limitation under this provision, secured to thechildren of Japanese immigrants the same privileges, liberties, and rights in the schools as wereenjoyed by the children of our own citizens. But Mr. Richard Olney, who as Secretary of State in Mr.Cleveland's administration negotiated the treaty, contends that the final clause reserved a right anddiscretion in the state authorities of California to do exactly what they did do with reference toJapanese pupils. This clause provides: "It is, however, understood that the stipulations contained in thisand the preceding article do not in any way affect the laws, ordinances, and regulations in regard totrade, the immigration of laborers, police, and public security, either in force or which may be hereafterenacted in either of the two countries." The word "police " when used in connection with the word"powers " is an apt phrase, well defined in law as covering all of the powers reserved to the states bythe Constitution. In the connection in which this word is used, this would probably be a reasonableconstruction of the word, and it may be that the action of the Board of Education of the City of SanFrancisco was within the reservation of rights provided by the treaty. 180Treaty power was never intended as a means of acquiring Asiatic territoryIt is certain, however, that the founders of our Republic did not contemplate for a moment theacquisition, through the war power by treaty, of extensive countries in Asia peopled by millions ofpeople, and their rule by Congress, not pursuant to the Constitution, but as subject people. GouverneurMorris, to his great discredit, writing to his friend. Henry Livingston, at the time of the purchase ofLouisiana, discloses the fact that in wording Article 4, Section 3, subdivision 2, giving Congress thepower to dispose of and make all needful rules and regulations respecting the territory or otherproperty belonging to the United States, he intended to use language which would allow the UnitedStates to acquire such territory and rule such people as subject people. "But," he says, "candor obligesme to add my belief that had it been more pointedly expressed a strong opposition would have beenmade." He apparently understood the views of the other members of the Convention, and he knew ifsuch a purpose was suspected that the provision would be rejected, so he resorted to a subterfuge to

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inject into the Constitution a clause which the United States Supreme Court in our day has construed asenabling us to rule tens of millions of human beings as subject people.Speaking of the war power John Quincy Adams, in the House of Representatives in 1836, well said:"This power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiouslyerected for the protection of liberty and of life." We protected slavery in our Constitution, nourished itfor over seventy years, and destroyed it only by a terrible war which brought in its train evils that stillthreaten the very life of our Republic. We are sowing seed of the same kind in the acquisition ofcolonial territory, and in the rule of millions of people according to the principles of Russian andAsiatic despotism. The treaty power is a power which can be exercised with such dangerous results,that well might it be guarded most jealously by the American people against the ambitions of men whowould make of our people a world power, even at the expense of destroying the spirit if not the letterof the Constitution.

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VIII THE INTERSTATE COMMERCE CLAUSE

"The difference between liberty and slavery may turn upon a little thing, but it is not a littledifference."ANON."An irreducible minimum of compulsion is the very essence of good government."ANON."If the day should ever arrive (which God forbid!) when the people of the different parts of our countryshall allow their local affairs to be administered by prefects sent from Washington and when the selfgovernment of the States shall have been so far lost as that of the departments of France, or even soclosely limited as that of the counties of England on that day the political career of the Americanpeople will have been robbed of its most interesting and valuable features, and the usefulness of thisnation will be lamentably impaired."JOHN FISKE.

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CHAPTER VIII THE INTERSTATE COMMERCE CLAUSE

President Roosevelts contention that state rights should be preserved only when they mean thepeoples rightsIT is not my purpose to attempt to vindicate the rights of the states as against the national government,nor to vindicate the rights of the national government as against the states. There is no danger from thedevelopment of the commerce clause, if that development is within the lines of the constitutional grant.The exercise of Federal powers beyond this grant is always dangerous because such exercise isundefined and therefore unlimited. The exercise of Federal power within this grant is not onlypermissible, but it is commendable for the national government to stand upon its rights and enforce thepowers given it. For the same reason it is not only permissible for the state to insist that its rights shallnot be infringed, but it is commendable for the state so to do. The extension, in recent days, of theexercise of powers claimed to belong to the national government has resulted largely from theexistence of evils by reason of the abuses of trusts and railways.Those who have urged the extension of national powers over these abuses have uttered hardly anythingworthy of a logical discussion of the question as to whether Congress had power under the InterstateCommerce Act to pass the recent enactments. They have started with the assumption that abusesexisted, that the states could not correct them, and that therefore the national government ought tocorrect them whether it possessed the power or not. President Roosevelt, in his Massachusetts speech afew months ago, said: "State rights should be preserved when they mean the people's rights but notwhen they mean the people's wrongs; not, for instance, when they are invoked to prevent the abolitionof child labor, or to break the force of laws which prohibit the importation of contract labor to thiscountry; in short, not when they stand for wrong or oppression of any kind or for national weaknessesor impotence at home or abroad. . . . The states have shown that they have not the ability to curb thepower of syndicated wealth, and, therefore, in the interests of the people, it must be done by nationalaction."State rights, we submit, should be preserved whether they mean the people's rights or not. Nationalrights should be preserved whether they mean the people's rights or not, because it is the written law.State rights should be preserved whether they have shown their ability to curb the power of syndicatedwealth or not, because they are secured by the Constitution of the United States, and the nationalgovernment and Congress and the President are directed by that instrument "not to deny or disparage "those rights. The United States Supreme Court has declared, again and again, "that the maintenance ofthe state governments is as much within the design and care of the Constitution as the preservation ofthe Union and the maintenance of the national government. The Constitution in all its provisions looksto an indestructible Union composed of indestructible states." 181 The President has taken an oath "topreserve, protect, and defend the Constitution of the United States," and he is under as sacred anobligation to protect the reserved rights of the states as he is to vindicate the rights of the nationalgovernment.Before the national government was formed the states existed. It could not have come into existencebut for the delegation of powers to it from the state governments, and it cannot exist without theexistence of the states exercising all the vigor of their reserved rights. "I believe," said SenatorEdmunds, "that the safety of the Republic as a nation, one people, one hope, one destiny, depends more181

Texas v. White, 7 Wall., 725.

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largely upon the preservation of what are called the rights of the states than upon any one thing." 182 2 Iam contending not for state rights, as the reader has seen in the chapter on The Treaty Power and StateRights, but I am contending, with all conviction, that of all the men in this nation it most ill becomesthe President of the United States to say "that state rights should be preserved when they mean thepeople's rights," when he is under a sworn obligation to preserve them because the Constitutiondemands that they should be preserved. Of all men the President, his advisers, and the officers ofgovernment are under the most solemn obligation to obey the Constitution. They are its swornguardians, and for them of all men to renounce that obligation argues recreancy of duty and presents anevil example to all the people of the land.The right of commercial intercourse belonged to the people before the ConstitutionThe construction of the fundamental law on which the liberties of the people rest should never be madeon grounds of supposed necessity or convenience. It is just such statements as we have quoted on thepart of the President which have led the people to overlook and forgive usurpations of power, thinkingthat those usurpations are necessary for the public welfare. It is well to observe at the very start of thediscussion that the states are not dependent for their rights to intercourse upon the Federal Constitution,but, in the language of Chief Justice Marshall, commerce "derives its source from those laws whoseauthority is acknowledged by civilized man throughout the world." 183 The states had this privilegeunimpaired before the making of the Constitution, and they possess it to-day except so far as they havedelegated it to the national government.The Constitution is to be interpreted by the facts existing at its birthThe Constitution "speaks not only in the same words, but with the same meaning and intent with whichit spoke when it came from the hands of its framers, and was voted on and adopted by the people of theUnited States. Any other rule of construction would abrogate the judicial character of this court, andmake it the mere reflex of the popular opinion or passion of the day." 184 Now if the Constitutionspeaks to-day with the meaning and intent of its makers, there is no way more effective in ascertainingthat intent and meaning than to turn to the history of the time when it was framed to learn theconditions then existing, and the mischief which it sought to correct. 185 The Constitution probablywould not have come into existence, for many years at least, had it not been for the abuse by states oftheir right to control the importation of goods from foreign markets, and their abuse of the right toimpose duties and imposts upon the importation of goods from other states of the Confederation.Congress, before the treaty of peace with Great Britain and again after the making of that treaty, hadsought the power from the states to impose duties upon foreign imports and to control interstatecommerce. The right of the states to impose duties upon foreign commerce was of great value to someof them. Rhode Island had one of the best harbors of that day at Newport, and by imposing duties uponimported goods which she sold to Massachusetts, New Hampshire, and Connecticut her people wereable to meet the expenses of the state government. The great harbor of New York, midway betweenConnecticut and New Jersey, enabled her to lay duties on foreign importations, from which shesecured each year from f6o,ooo to f8o,ooo. As a portion of these imports were taken by Connecticutand New Jersey, they were obliged in this way to support the government of New York. But this was182

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not all. She compelled every sloop which came down from Hell Gate, and every market boat fromNew Jersey, to pay an entrance fee and obtain clearance from her customhouse, and the people of thosestates could not get a load of wood or a dozen eggs into New York without paying- duties on them.New Jersey retaliated by laying a tax of $1,800 per year on the lighthouse property off Sandy Hook,and the people of Connecticut, after submitting for some time, finally voted to suspend commercialintercourse with New York.Pennsylvania imposed duties upon exports from New Jersey and Maryland. Virginia, by reason of herduties on both foreign and domestic imports, secured a considerable part of the revenues necessary forthe payment of the cost of her government. The port of Charleston afforded an opportunity to thepeople of South Carolina to exact tribute from Georgia and North Carolina. As a result of all theseduties upon imports from foreign countries, and imports from adjoining states, animosities had arisenbetween the states, and the need that the national government should have power to stop theseobstructions to commerce was the very cause of the meeting at Annapolis and of the ConstitutionalConvention.The regulation of commerce by the nation was intended to prevent obstructions to commerceWe have shown the circumstances leading to the framing of the Constitution, and the only apparentcauses, existing at that time, for delegating to the national government the power to regulate commercewith foreign nations and among the several states. Now the question naturally arises was it the intent,in view of those causes, to give to the national government any greater power than by regulation toprevent such obstructions from being imposed by the states upon interstate commerce. In regard toforeign commerce, the general government stands in the place of every state and represents it for everynational purpose, yet when the states surrendered the right to control interstate commerce, having inview the abuses which had grown up, it was undoubtedly their intent to confer only the power to makecommerce free between the states.In the Lottery Case, Chief Justice Fuller says: "It is argued that the power to regulate commerce amongthe several states is the same as the power to regulate commerce with foreign nations and with theIndian tribes. But is its scope the same? As in effect before observed the power to regulate commercewith foreign nations and the power to regulate interstate commerce are to be taken diverso intuitu, forthe latter was intended to secure equality and freedom in commercial intercourse as between the states,not to permit the creation of impediments to such intercourse; while the former clothed Congress withthat power over international commerce, pertaining to a sovereign nation in its intercourse with foreignnations, and subject, generally speaking, to no implied or reserved power in the states." 186 l This wasthe opinion declared by the writers in The Federalist. It was the desire for freedom of commerceamong the states which inspired this provision as to interstate commerce in the Constitution, and all theearly cases so indicate.Mr. Justice Field, in a case 187 decided before the attempt to extend the meaning of the word "regulate "had been undertaken, said: "On examination of the cases in which they were rendered, it will be foundthat the legislation, adjudged to be invalid, imposed a tax upon some instrument or subject ofcommerce; or exacted a license fee from parties engaged in commercial pursuits; or created animpediment to the free navigation of some public water; or prescribed conditions, in accordance with186187

Lottery Case, 188 U. S., 373, 374.

Sherlock v. Alling, 93 U. S., 99.

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which commerce in particular articles or between particular places was required to be conducted. In allthese cases the legislation condemned operated directly upon commerce, either by way of tax upon itsbusiness, license in its pursuit in particular channels, or conditions for carrying it on. Thus, in thePassenger Cases, the law in New York and Massachusetts exacted a tax from the captains of vesselsbringing passengers from foreign ports for every passenger landed. In Pennsylvania against WheelingBridge, the statute of Virginia authorized the erection of a bridge, which was held to obstruct the freenavigation of the river Ohio. In the case of Sinnott against Davenport, the statute of Alabama requiredthe owner of a steamer navigating the waters of a state to file, before the boat left the port of Mobile, inthe office of the Probate Judge of Mobile County, a statement in writing, setting forth the name of thevessel and of the owner or owners, and his or their place of residence and interest in the vessel, andprescribed penalties for neglecting the requirement. It thus imposed conditions for carrying on thecoasting trade in the waters of the state in addition to those prescribed by Congress. And in all theother cases where legislation of a state has been held to be null and void, for interfering with thecommercial power of Congress, as in Brown against Maryland, State Tonnage Tax Cases, and Weldonagainst Missouri, the legislation created, in the way of a tax, license, or condition, a direct burden uponcommerce, or in some way directly interfered with its freedom." In fact it will be found that, within theconception of the fathers, the control which they gave over interstate commerce was intended to coveronly coastwise shipping from the port of one state to the port of another state. Mr. Justice Bradley, in acase, 188 said: "No doubt commerce by water was primarily in the minds of those who adopted theConstitution, although both its language and spirit embrace commerce by land and water as well."But there is an abundance of evidence found in the acts of the Constitutional convention, and in theconstruction of the Constitution by the early Presidents, to show that it was not the intent of theframers of the Constitution, under the power to regulate interstate commerce, to clothe Congress withthe power to prohibit commerce, or to own and operate canals and post roads. On September 14, 1787,a motion was made by Franklin in the Constitutional Convention that Congress be given power "toprovide for cutting canals," and the motion was defeated. Edmund Randolph, who presented to theConstitutional Convention the Virginia plan, while Attorney-General under the administration ofWashington, gave his opinion to Washington, February 12, 1791, on the extent of the power inCongress to regulate commerce, saying that its extent was "little more than to establish the forms ofcommercial intercourse between the states, and to keep the prohibitions which the Constitutionimposed upon that intercourse undiminished in their operation; that is, to prevent taxes on imports orexports, preference to one port over another by any regulation of commerce or revenue, and dutiesupon the entering or clearing of the vessels of one state in the ports of another." 189 Gallatin, in hisreport on internal improvements submitted April 6, 1808, said: "It is evident that the United Statescannot under the Constitution open any road or canal without the consent of the state through whichsaid road or canal must pass."When Madison was President, Congress passed a bill to construct national roads and canals, improvewater courses, and make internal improvements, but Madison vetoed the bill. At a later date, when itwas sought to set apart and pledge as a permanent fund for internal improvements the. bonus of thenational bank, and the share of the United States in its dividends for the purpose of building roads,Madison vetoed the bill, saying: "The power to regulate commerce among the several states cannotinclude a power to construct roads and canals, and to improve the navigation of water courses, in orderto facilitate, promote, and secure such a commerce, without a latitude of construction departing from188189

The B. & O. Railroad Co. v. Md., 21 Wall., 456.

Prentice, Fed. Power over Carriers and Corporations, p. 102.

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the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to thegrant of this remedial power to Congress." And he declared "that it was a dangerous assertion ofnational power . . . seeing that such a power is not expressly given in the Constitution, and believingthat it cannot be deduced from any part of it without an inadmissible latitude of construction." 190Monroe vetoed an act granting money for the preservation and repair of the Cumberland Road in May,1822, on the ground that the government had no authority to devote money for such purposes. 191Jackson vetoed a bill authorizing the subscription of stocks in the Maysville-Washington-Paris andLexington Turnpike Company. 192 In the Civil War the United States Government granted Federal aidin the construction of the Central Pacific Railway, but this was done under the war power at a timewhen usurpations of power were common, and the road was needed to move troops and to controlIndian outbreaks. The track was laid over government lands, and the language of the act expressed thenecessity to "secure the safe and speedy transportation of the mails, troops, munitions of war andpublic stores of the United States." In view of all these facts, can there be any doubt as to the lack ofpower in Congress to incorporate railways and build post roads?But the times have changed and the customs have changed. To-day government goes roaming at willupon a boundless sea without chart or compass, seeking power wherever it can find it, with littlereference to the limitations of the Constitution. Senator Beveridge proposes a bill forbidding thetransport, or acceptance for transport, of the products of any factory or mine in which children underfourteen years of age are employed or permitted to work. The President proposes a national license lawgiving him the right to grant a national license in his discretion to such corporations as he thinks aregood enough to engage in interstate commerce. The Department of Commerce and Labor is created toinvestigate the organization, conduct, and management of any corporation or joint stock companyengaged in commerce among the several states, to examine their books, and to make recommendationsto Congress for legislation. A bill providing for the Federal registration of automobiles, and toestablish a uniform system throughout the entire country as regards the requirements demanded of theirowners, is before Congress. An interstate commerce board is created to fix the rates to be charged onnearly 220,000 miles of railway. Under the guise of controlling interstate commerce, the police powerof the states as to the control of food/ drugs, lotteries, importation of teas, and many other matterswhich heretofore have been entirely within the control of the states, is taken over by the nationalgovernment.In short, the national government, with few delegated powers, is going back to the old world views ofthe functions of government, and, through the interstate commerce act, is establishing a Federal policepower which follows the footsteps of every citizen by licenses and restraining laws into every avenueof life, and practically supplants the police powers reserved to the states. 193If the United States Supreme Court sustains all these powers, the national government will becomeomnipotent. An ambitious President, through his right to execute the laws, can perpetuate his power inspite of the people. But the President seeks powers still greater than these. He asks Congress to conferupon the Interstate Commerce Commission the right to discriminate between good and bad trusts; toallow certain railways to form combinations; and to punish those which it desires, and to exempt thosewhich it thinks it wise to refrain from punishing.190

Elliot's Deb., vol. iv, pp. 468-470.

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Such powers as the President desires were never conferred upon the head of a constitutionalgovernment in all the history of mankind. In his message to Congress he says: "The actual working ofour laws has shown that the effort to prohibit all combination, good or bad, is noxious where it is notineffective. Combination of capital like combination of labor is a necessary element of our presentindustrial system. It is not possible completely to prevent it; and if it were possible, such completeprevention would do damage to the body politic. What we need is not vainly to try to prevent allcombination, but to secure such rigorous and adequate control and supervision of the combinations asto prevent their injuring the public, or existing in such form as inevitably to threaten injury for themere fact that a combination has secured practically complete control of a necessary of life wouldunder any circumstances show that such combination was to be presumed to be adverse to the publicinterest. It is unfortunate that our present laws should forbid all combinations, instead of sharplydiscriminating between those combinations which do good and those combinations which do evil. . . .No more scathing condemnation could be visited upon a law than is contained in the words of theInterstate Commerce Commission when, in commenting upon the fact that the numerous joint trafficassociations do technically violate the law, they say: 'The decision of the United States Supreme Courtin the Trans-Missouri Case and the Joint Traffic Association Case has produced no practical effectupon the railway operations of the country. Such associations, in fact, exist now as they did beforethese decisions, and with the same general effect. In justice to all parties we ought probably to add thatit is difficult to see how our interstate railways could be operated with due regard to the interest of theshipper and the railway without concerted action of the kind afforded through these associations.' Thismeans that the law, as construed by the Supreme Court, is such that the business of the country cannotbe conducted without breaking it. I recommend that you give careful and early consideration to thissubject; and if you find the opinion of the Interstate Commerce Commission justified, that you amendthe law so as to obviate the evil disclosed."Now what is the inference from this statement? The message expresses the opinion that it should bepermitted to railroads to make pooling agreements, providing these agreements were sanctioned by theInterstate Commerce Commission. The President renewed this suggestion in his Indianapolis speech,saying: "The law should be amended so that railroads may be permitted and encouraged to make trafficagreements in the interests of the general public as well as of the corporations making them." Was anysuch proposition ever heard from the ruler of a constitutional government? Will the people quietlyallow the government to take possession of such a boundless field of power as the right to discriminatebetween good and bad combinations? Such a power was never exercised in any but an autocraticgovernment. It would be unsafe to vest such vast power in five men, however honest they might be.Allow a board of interstate commerce to discriminate in this manner, and you actually put everyrailway and all their wealth at the mercy of these men's discretion, and you give to government such aterrific power as men have never exercised with moderation and justice.The men upon the Interstate Commerce Commission are undoubtedly good and honest men. Theywould intend to exercise this unlimited power justly, but good intentions have never restrained agovernment that is otherwise unrestrained. Even though such power was now exercised for the publicbenefit, there would surely come a day when it would be wielded unjustly. The liberties of the peoplecan never be protected if they intrust such vast and indefinite powers to any board. Years ago when theearly railways were being built in Hungary and Austria, great corruption prevailed. Mr. Lowell, in hisadmirable work on "Governments in Continental Europe," tells the story of the great Hungarian patriot,Francis Deak. "Deak once remarked in Parliament that as a boy he had a strong fancy for eating eels,until he discovered the foul kind of place in which they lived, when his feelings turned to disgust. Inlike manner, he said, his enthusiasm for railroads was checked when he learned the methods by whichFederal UsurpationElectronically published by Family Guardian Fellowship

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concessions for building- them were engineered through the Parliament. The honest old statesmannever attended the debates on railroad bills thereafter; and if he chanced to enter the hall unawareswhen such a measure was under discussion, some of the members would cry, 'Eels! Eels!' and heinstantly slipped out again." 194 lThe Interstate Commerce Employers Liability ActLet us take up one by one a few of the acts passed and others proposed under the interstate commerceprovision of the Constitution. The act of Congress of June 11, 1906, is entitled, An act relating to theliability of common carriers in the District of Columbia and Territories and common carriers engagedin commerce between the States and between the States and foreign nations, to their employees. Thisact provides: "That every common carrier engaged in trade or commerce in the District of Columbia,or in any Territory of the United States, or between the several States, or between any Territory andanother or between any territory or territories and any state or states, or the District of Columbia, orwith foreign nations or between the District of Columbia and any state or states or foreign nations,shall be liable to any of its employees, or, in the case of his death to the personal representative for thebenefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kindependent upon him, for all damages which may result from the negligence of any of its officers,agents, or employees, or by reason of any defect, or insufficiency due to its negligence in its cars,engines, appliances, machinery, track, roadbed, ways, or works." It then provides in Section 2 that ifthe employee may have been guilty of contributory negligence, it shall not bar a recovery where hiscontributory negligence was slight, and that of the employer was gross in comparison, but the damagesshall be diminished by the jury in proportion to the amount of negligence attributable to suchemployee. The action can be brought in the United States District or Circuit Court. It is to be observedthat this act applies to all the employees of such common carriers, including those who render noservice in the transportation of interstate commerce, as, for instance, engineers of local trains, sectionhands, mechanics in car and machine shops, clerks in offices, and coal heavers for stationary engines.It embraces all kinds of injuries, and proposes to abolish the fellow-servant doctrine in states where itis recognized. This act has been declared unconstitutional by two United States District Court Judges,and has been held constitutional by a Circuit Court Judge. In one of the cases decided by the districtcourt, an appeal was taken to the United States Supreme Court and argued in the early part of the year1907. The attorney-general of the United States, at the request of the President, intervened in behalf ofthe plaintiff, a private party, and the government, through him, was heard in the Supreme Court of theUnited States, a precedent for which action can hardly be found in our judicial history. The Court hasnot yet handed down a decision upon the appeal. 195The law of the state where an accident, because of negligence, occurs has always governed the cause ofaction for negligence between master and servant. 196 2 The internal commerce of a state is just as muchunder its control as foreign and interstate commerce is under the control of the national government.The ordinary liabilities and duties of the citizens of a state are not affected in the slightest by the factthat they are persons engaged in foreign or interstate commerce. Again and again has it been held that"A carrier exercising his calling within a particular state, although engaged in the business of interstatecommerce, is amenable, according to the law of the state, for acts of nonfeasance and misfeasancecommitted within its limits." 197 3 If he fail to deliver goods to the proper consignee, at the proper time194

Lowell, vol. ii, p. 142.

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and place, he is liable in an action for damages under the laws of the state in its courts; or if, bynegligence in transportation, he inflicts an injury on the person of a passenger brought from anotherstate, a right of action for the consequent damage is given by the local laws. It has been held again andagain that rules prescribed by a state for the construction, management, and operation of railroadswithin its territory are strictly within the limits of local law, and are not per se regulations ofcommerce. Rules requiring certain efficiency in engineers, firemen, train hands, and telegraphoperators, prescribed by the state, are legal notwithstanding such employees are employed in interstatecommerce. 198But in this act, the employee, whether an engineer of a local train, a section hand, a mechanic in the carand machine shops, a clerk in the office, a coal heaver for a stationary engine, or any other employeeof the railroad company who performs his entire labor within the state, is declared to be entitled torecover in the United States courts because of the right of Congress to regulate interstate commerce.His employment alone by a corporation engaged in interstate commerce, in the contemplation of thelaw, is sufficient to establish jurisdiction and to give judicial power to award him damages in theFederal courts.If Congress can confer a cause of action upon an employee of a common carrier engaged in interstatecommerce for the negligence of his employer, it can equally prescribe that his day's work shall consistof four hours. It can regulate every relation between that common carrier and its employee. By and by,in the language of Congressman McCall, it will come "that the most common thing will be thenecessity of an affidavit for a citizen to move his goods from state to state." By and by, the veryintention of shipping the products of the farm, or the shop, or of any productive industry by aninterstate carrier, will give the regulation of such farm, or manufactory, or industry to Congress. In thelanguage of Mr. Justice Lamar in Kid against Pearson, 199 "The result would be that Congress wouldbe invested, to the exclusion of the states, with the power to regulate, not only manufacturers, but alsoagriculture, horticulture, stock raising, domestic fisheries, mining, in short, every branch of humanindustry. For is there one of them that does not contemplate, more or less clearly, an interstate orforeign market? Does not the wheat grower of the Northwest and the cotton grower of the South plantand harvest his crop with an eye on the prices at Liverpool, New York and Chicago? The power beingvested in Congress and denied to the states, it would follow, as an inevitable result, that the duty woulddevolve on Congress to regulate all of these delicate, multiform and vital interests interests which intheir nature are and must be local in all the details of their successful management. ... It was said byChief Justice Marshall that it is a matter of public history that the object of vesting in Congress thepower to regulate commerce with foreign nations and among the several states was to insureuniformity of regulation against conflicting and discriminating state legislation."Under this employers' liability law. Congress has attempted to take from the cognizance of state courtstheir jurisdiction over a class of cases which they have exercised during the entire history of thecountry, upon the single ground that the man injured in the state is the employee of an interstatecommon carrier. All the transactions of men with common carriers through express companies,accidents upon trains, and the hundred other kinds of cases which might arise out of such relationships,by and by will be removed by a national statute from the state courts to the United States courts,simply because one of the parties is a common carrier of interstate commerce and the other party isdealing with him. In 1903 Mr. Justice Brewer said: "The Constitution is supposed to possess an198

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elasticity which would make the manufacturers of India rubber choke with envy." Indeed, if theconstitutionality of this act is sustained, all the relations which men have with common carriers ofinterstate commerce will be subject to the control of Congress. 200Proposed Interstate Commerce Child Labor LawSenator Albert J. Beveridge, of Indiana, whose sympathy witty the poor and the afflicted will not bedoubted by anyone who has read his two volumes entitled The Russian Advance, in which he sets forthall the beauties of the Russian autocracy, introduced in the Fifty-ninth Congress a bill for theregulation of child labor, prohibiting any railway, engaged in interstate commerce, from carrying asfreight any article upon which children less than fourteen years of age had performed labor. RobertHunter tells us that not less than 80,000 children, most of them little girls, are employed at present inthe textile mills of the country. He tells us that in the South there are now six times as many children atwork as there were twenty years ago. Surely the attainment of no more worthy object can be conceivedof than the protection of such children in our factories.The question, however, is, shall the United States government attempt to remedy this evil through theinterstate commerce clause, without the slightest authority for its action? This bill was rejected byCongress. It has the support, however, of the President. Mr. Bryan, in his debate with SenatorBeveridge, 201 says: "I have given to Senator Beveridge's bill (referring to the proposed child's laborbill) whatever support I could. It is right in principle, it is necessary, and it does not interfere with thereserved rights of the states." So between Senator Beveridge and the President and Mr. Bryan, this billwill undoubtedly appear again before Congress. The Judiciary Committee of the House ofRepresentatives said of this bill: "It is not extreme or ridiculous to say that it would be just as logicaland correct to argue that Congress can regulate the age, color, sex, manner of dress, height, and size ofemployees, and fix their hours, as to contend that Congress can exercise jurisdiction over the subject ofwoman and child labor. . . . The agitation of such legislation produces an uneasy feeling among thepeople, and confuses the average mind as to the power of Congress and the power of the state."If Congress can regulate child labor in the factories, under the interstate commerce clause, because theowner of the factory contemplates selling his goods in another state, with just as much consistency itcan regulate child labor upon the farm, in the wheat field, or in the cotton field, upon the ground thatthe farmer and the cotton grower intend to ship their crops to Liverpool. If it can regulate the age ofchildren in factories because the product of those factories is carried by a common carrier to anotherstate, why can it not regulate the ages of the farmer's children working in the wheat fields? A portion ofall the products of the farm and the factory is carried beyond the confines of the state by commoncarriers, and if this fact is to control, there is nothing to prevent the regulation of the whole industriesof the country by Congress, because, forsooth, the products of those pursuits are to become thesubjects of interstate commerce.There is not an evil in all the vast field of production which Congress cannot control if this proposedlaw is permissible. Such a pretension would result in the supervision of the means of production of allthe subjects of interstate and foreign commerce which may be borne upon railways or canals, frompoint to point within the several states, toward their ultimate destination in another state or in a foreigncountry. Such a pretension would put under the control of Congress every man, not only engaged in200201

Field v. Barber Asphalt Co., 194 U. S., 618.

The Reader, April, 1907, p. 465.

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interstate commerce, but working upon the railways and the canals and the boats and ships which areused on the highways of commerce. Of course, the absurdity of such legislation is apparent to anyintelligent man, but because it appeals to millions of philanthropic people, to millions who do notunderstand the powers of the national government. Congress is besought to pass such unconstitutionallaws.Judge Farrars plan of government ownership of all interstate railways approved by thePresidentOn April 2, 1907, Judge Edward H. Farrar, of New Orleans, communicated to the President a means ofaccomplishing all the results sought by the kind of legislation which we have been describing, throughthe power given to the national government in Paragraph 7, Section 8, Article 1, of the Constitution,which grants to Congress power to establish post offices and post roads. In this letter he assumes thatbecause Congress has been given this power it can create a corporation to take over the whole railwaysystem of the country, if necessary, and then lease those railways to the companies from which theyhave been taken. In this way Congress will be the owner of the property, using it for a public purpose,and can exercise the control necessary to accomplish all the reforms sought without an amendment tothe Constitution.A resolution empowering Congress to create a corporation was rejected in the Convention whichframed the Constitution. The Pacific Railroads were chartered as territorial corporations, deriving theirauthority from the states within which they operated by state permission. Throughout the long historyof the Cumberland Post Road the practice was uniform of securing the consent of the state to build theroad. Mr. Prentice, in his admirable work on Federal Powers over Carriers and Corporations, 202 citesan interesting instance of this in the Act of Congress of March 26, 1804, enacting: Section 4, "Thatwhenever it shall be made to appear to the satisfaction of the Postmaster-General that any roadestablished by this or any former act, as a post road, is obstructed by fences, gates, or bars, other thanthose lawfully used on turnpike roads, to collect their toll, and not kept in good repair with properbridges and ferries, where the same may be necessary, it shall be the duty of the Postmaster-General toreport the same to Congress, with such information as can be obtained, to enable Congress to establishsome other road, instead of it, in the same main direction." So we see that the Constitution, asconstrued at that time, did not even confer upon the Federal government authority to removeobstructions either from roads or streams through a state. " 203 How greatly have our modern rulersmagnified this power.But let us see what construction one of the Justices of the United States Supreme Court has put uponthe words "to establish post offices and post roads." In the State of Pennsylvania against the Wheeling& Belmont Bridge Company, 204 Mr. Justice McLean of the United States Supreme Court says: "Thesame power that would enable Congress to build a bridge over a navigable stream would authorize it toconstruct a railroad or turnpike road through the states of the Union, as it might deem expedient. Thispower may have been asserted in regard to post roads, but the settled opinion now seems to be that toestablish post roads within the meaning of the Constitution is to designate them. In this sense Congressmay establish post roads extending over bridges, but it can neither build them nor exercise any controlover them, except the mere use for the conveyance of the mail on paying toll." One who follows the202

Prentice, Fed. Powers over Carriers and Corporations, p. 150.

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history of the Cumberland Road, from 1806 until Madison and Monroe had finally destroyed the roadbecause of the lack of power to expend the public moneys for such a purpose, can hardly doubt that itwas the opinion in those days of both Congress and the President that the power did not exist in thenational government to own and operate post roads through the several states. That is clearly seen bythe fact that the consent of the states was procured, and that, when obstructed by a state, thegovernment sought another road.We are all well acquainted with what is known as the police powers of the state. The states originallypossessed entire control of laws affecting public morals, public health, and all laws of a similar natureof so many descriptions as to be hardly capable of enumeration. It delegated none of these powers tothe United States government. To put that fact beyond question the Ninth and Tenth Amendments tothe Constitution, expressly reserving such powers, were passed. They provided that "The enumerationin the Constitution of certain rights shall not be construed to deny or disparage others retained by thepeople"; and that "The powers not delegated to the United States by the Constitution, nor prohibited byit to the States, are reserved to the States respectively, or to the people." All police powers are vested inthe state as securely as the ingenuity of man can devise language to vest a power in a state; or, to statethe proposition more clearly, those powers were always in the states and were never delegated to thenational government, and, with a distrust and jealousy of power which we do not seem to feel, thestates were determined to put it beyond question that such powers were not delegated, and thereforeinsisted upon the adoption of these two amendments.The Lottery Case, its important bearing upon the police powers of the statesBy an act of Congress passed in 1895 it was made a punishable offense for any person to bring into theUnited States from abroad for the purpose of disposing of the same, or to deposit in, or carry by themails of the United States, or by any express company, any paper, certificate, or instrument purportingto be a ticket, share, or interest in and depending upon the event of a lottery, and the crime was madepunishable by imprisonment for not more than two years, or by a fine of not more than $2,000. InDallas County, Texas, one Champion delivered to the Wells-Fargo Express Company a certain box orpackage containing lottery tickets to be carried to Fresno, Cal. He was indicted for this offense, and thequestion arose whether a lottery ticket was a subject of commerce, and whether its delivery to anexpress company, to be taken from the state of Texas to the state of California, was an offense underthis act. The United States Supreme Court, Mr. Justice Harlan delivering the opinion, held that a lotteryticket was a subject of traffic among those who chose to sell or buy it, and that, therefore, the carriageof such a ticket by independent carriers from one state to another was interstate commerce; that, underits power to regulate commerce among the several states, Congress had plenary authority over suchcommerce and might prohibit the carriage of such tickets from state to state; and that this legislationwas not inconsistent with any limitation or restriction imposed upon the powers granted to Congress.1Four Justices of that court concurred with this decision and four dissented. 1 Lottery Case. 188 U. S.,363, 364, of opinion.Congress, before this decision, had enacted a law forbidding the transport of intoxicating liquors froma place without a state which prohibited the sale of liquors to a place within that state. It has sincepassed what is known as the Pure Food Law, regulating interstate commerce in impure foods andimpure drugs, and probably it will continue to enact similar laws. The probable result of this decisionis that eventually the national government will assume control of all such police powers of the states,and will attempt, under the commerce clause, to legislate upon many subjects which heretofore haveFederal UsurpationElectronically published by Family Guardian Fellowship

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been controlled only by state legislation. It therefore becomes a serious question whether suchlegislation is constitutional.The object of this kind of legislation is clearly to control the morals and the health of the people of thedifferent states. May Congress use the power granted for one purpose for the accomplishment of anentirely different purpose? Because it has been given the right to regulate commerce, that is, toprescribe the rules by which commerce is to be governed, may it use that right to destroy the exclusivepowers which belonged to the states before the Constitution, which were not delegated to the nationalgovernment, and which amendments to the Constitution expressly reserved to the states? Does not thenational government disparage such powers of the states when it attempts indirectly to take the place ofthe states in enforcing them? "Should Congress," said Chief Justice Marshall, "under the pretext ofexercising its powers pass laws for the accomplishment of objects not intrusted to the government, itwould become the painful duty of this tribunal, should a case requiring such a decision come before it,to say that such an act was not the law of the land." 205The words of the prevailing opinion in the Lottery Case show clearly that the decision rested upon thefact that it was pernicious in nature and opposed to good morals, yet it attempted to control that lotterythrough the power over commerce delegated to Congress for the sole purpose of keeping commerceunobstructed between the states. Mr. Chief Justice Fuller, with three of the Justices concurring in hisdissenting opinion, said: "That the purpose of Congress in this enactment is the suppression of lotteriescannot be denied. That purpose is avowed in the title of the act, and it is its natural and reasonableeffect, and by that its validity must be tested." These dissenting judges held that the carriage of alottery ticket from one state to another by an express company was not commercial intercourse;that the ticket simply purported to create contractual relations, and to furnish the means of creating acontract right, and came within the holding of numerous cases that insurance policies were not subjectsof commerce.Mr. Justice Fuller very pertinently inquires, "If a state should create a corporation to engage in thebusiness of lotteries, could it enter another state which prohibited lotteries on the ground that lotterytickets were the subjects of commerce? On the other hand, could Congress compel a state to admitlottery matter within it contrary to its own laws? ... It will not do to say a suggestion which hasheretofore been made in this case that state laws have been found to be ineffective for thesuppression of lotteries, and therefore Congress should interfere. The scope of the commerce clause ofthe Constitution cannot be enlarged because of present views of public interests." The dissentingopinion concludes very properly that the object of the power granted to Congress to regulate interstatecommerce was "to secure equality and freedom in commercial intercourse as between the states andnot to permit the creation of impediments to such intercourse," and that this attempt to regulate moralsand take over the police powers of the state through an act of Congress was unconstitutional. "I regardthis decision," says the Chief Justice, "as inconsistent with the views of the framers of the Constitution,and of Marshall, its great ex-pounder. Our form of government may remain notwithstanding legislationor decision, but, as long ago observed, it is with governments, as with religions, the form may survivethe substance of the faith."This lottery case is the most important, as bearing upon the relations between our state and nationalgovernments and the powers vested in each, which ever has been decided by the United States205

McCulloch v. Maryland, 4 Wheaton , 423.

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Supreme Court. If it is to remain the law, the idea of "the founders that the power vested in Congresswas simply to protect commerce from acts of interference by state governments has been whollydestroyed. The right of the national government to pass a pure food law, or a prohibitive tax onoleomargarine, an act to prevent the importation of teas below a certain quality or flavor, 206 andproposed laws for the regulation of insurance and hours of labor in various employments, are alldependent upon the soundness of this decision. Can it be that the power given Congress to regulatecommerce between the states was intended to permit it to enter upon the reformation of society? 207That is precisely what was established in the Lottery Case. It is plainly stated in the law, theconstitutionality of which was tested in the Lottery Case, that it was enacted to suppress lotteries. Mr.Justice Harlan, in his opinion sustaining the law, said:"May not Congress, for the protection of the people of all the states and under the power to regulateinterstate commerce, devise such means as will drive the lottery traffic out of commerce among thestates?" The majority of the court held that it could.A statute of Congress attempting to control the manufacture of illuminating fluids within a state, bymaking it punishable to sell such fluids inflammable at less than a certain specific temperature, washeld, on an appeal from the conviction of one found guilty of violating the law at Detroit, as absolutelyvoid because it was an invasion of the police powers of the states. 208 In the act referred to, creating aboard of tea examiners to report upon the quality or flavor of teas, and giving them power to reject allimported teas below a certain quality or flavor, we have the principle established which, carried to itsultimate end, means that it is within the power of Congress, under the interstate commerce clause, toprohibit the importation of any commodity under the pretense of guarding the public health.But the Lottery Case established something still more important. This decision goes so far as toprohibit interstate commerce altogether wherever Congress may see fit. If it is good law, Congress mayimpose whatever terms it likes upon the privilege of carrying any commodity between one state andanother, and if the terms are not complied with, may forbid it entirely. If such legislation isconstitutional. Congress can acquire practical control over the operation of all production andmanufacture, as well as over the distribution of the products of every industry in the United States.Already it has been proposed by the President that the executive be given the right to prohibit allproducers who do not procure from the national government a license permitting them to engage ininterstate commerce. Attorney-General Knox, on October 14, 1902, at Pittsburg, declared that"Congress may deny to a corporation, whose life it cannot reach, the privilege of engaging in interstatecommerce except upon such terms as Congress may prescribe to protect that commerce from restraint."In the Lottery Case the counsel for the defendant urged upon the court that to uphold theconstitutionality of the lottery act would lead necessarily to the conclusion that "Congress mayarbitrarily exclude from commerce among the states any article, commodity, or thing of any kind ornature, or however useful or valuable, which it may choose, no matter with what motive to declarethat it may not be carried from one state to another." 209 And the court,. instead of denying that thedecision led to such a result, answered the objection as follows: "It will be time enough to consider theconstitutionality of such legislation when we must do so. The present case does not require the court to206

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declare the full extent of the power that Congress may exercise in the regulation of commerce amongthe states." 210 2 If the Lottery Case has not required the court to declare "the full extent of the power" ofCongress, what limit is there upon the power of Congress? What is to hinder them from taking over thecontrol of all the industries of the country under the power to regulate commerce?It is not generally appreciated by the people that when Congress enacts a so-called regulation ofcommerce, affecting the domestic affairs of a state, that the law enacted by Congress controlsexclusively the matters of the state which it affects. To illustrate, if the National Employers' LiabilityAct is held to be constitutional, in at least twenty-five states in the Union, it will amount to a repeal ofthe state laws as regards all persons injured while employed by railways engaged in interstatecommerce. According to the statistics of the Interstate Commerce Commission, on June 30, 1904, therewere 1,296,122 persons employed by such railways. Not over 250,000 of these could be required tocross state lines in the performance of their duties. The Employers' Liability Act would affect 46,037general office clerks, 154,920 station employees, 46,272 machinists, 53,646 carpenters, 159,474 "othershop men," 326,653 section foremen and trackmen, 46,262 switchmen, and 30,425 telegraph operators.So that practically this act would supplant the state laws in the case of several hundred thousand men.The next bill to be passed probably will be an eight-hour bill, controlling the hours of labor of theseemployees, and then a telegraphers' bill, and then an arbitration bill. Step by step, the nationalgovernment, at the rate it has been proceeding for the last ten years, finally will supervise all theindustries of this country through the pretext of regulating interstate commerce. Ought not the peopleto have a clear understanding of the danger that will result from such action on the part of Congress?The blessings of free trade between the statesIf the commerce clause was construed as it was the intent of the fathers, to protect commerce fromtariff acts and other acts of interference on the part of the states, great blessings would be conferredupon the people. Our national prosperity and wealth have come more from this provision of commerce,thus interpreted in the past, than from any other provision of the Constitution. Charles Sumner wellsaid: "If there be any single fruit of our national unity, if there be any single element of the Union, ifthere be any single triumph of the Constitution which may be placed above all others, it is the freedomof commerce among the states, under which that free trade, which is the aspiration of philosophers, isassured to all citizens of the Union, as they circulate through our whole broad country, withouthindrance from any state."Are national officials more efficient than those of the states?But how has it been used? Whenever terrible abuses have arisen, like those of the insurance companiesof New York City, the President has prescribed the remedy of national control. He has prescribed thiscontrol, although the United States Supreme Court, again and again, has declared that insurance, whencarried on by a company in New York with individuals in other states, was not commerce, but the mereentering into a contract between a corporation of one state and a citizen of another state. 211 Would thesupervision of Congress over insurance be so much more efficient than supervision by the states as tojustify the change? Congressman McCall, on Lincoln's Birthday last, speaking in New York of thecontrol by Congress of insurance, through its code, in the District of Columbia, said: "For instance,

188 U. S., 362 of opinion.

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under this beneficent code there is an insurance company operating to-day which appropriates to itstreasury or for expenses, ninety per cent of all the premiums collected."Congress controls the number of passengers which each boat engaged in river and coastwise trade maycarry. It has been given authority to require these boats to keep on board certain life-preserving andlife-saving instruments of a great variety. Has it performed its duties? Do not the death of thousands ofour people in recent years tell the tale of its incompetence? Is the ordinary public servant more honestbecause he is in the employ of the national government rather than in the employ of a stategovernment? Is there any justification for the national government's attempts to take over the control ofthe affairs of the states on the ground that its servants are more faithful and honest than those of thestates?Bismarck, at the height of his power, was unable to procure the passage of a bill allowing a uniformadministration of the railroads of Germany and the purchase by the government of certain lines. Mr.Lowell says:"Bismarck had this project very much at heart, but the dread of increasing the power of the centralgovernment was so great among the smaller states, that he did not even venture to bring the matterbefore the Bundesrath and had to content himself with the purchase by Prussia of the roads within herown territory." 212The great and dangerous power exercised by the President through commissionsThe President not only consented that Mr. Edgar Howard Farrar should give to the press the letter inwhich the latter had pointed out the way, through the power in Congress, to establish "post offices andpost roads," for the national government to acquire the railway systems of the country, but in hisMemorial Day address at Indianapolis he approved the idea. We have already an interstate commercecommission, which the President may appoint in vacation at will, and which is removable by thePresident at his pleasure, with the power to control the rates of traffic on two hundred and twentythousand miles of railway for all the goods of about ninety millions of people. Such a gigantic poweras that never before was placed in the hands of five men. A President, ambitious to continue in hisoffice by the wrongful use of this power, could procure a nomination in spite of the people. And stillthe President is not satisfied, but apparently seeks to control more directly the railways of the country.At the banquet of the Gridiron Club at Washington in 1907, the newspapers represented the Presidentof 1917 as erasing the chalk boundaries between the states and leaving the central governmentsupreme. Not only will he be able, if such powers are conferred upon him, to erase the lines whichseparate the states, but by reason of the vast executive powers in his hands, he will be able to makedecrees which Congress will register as complacently as do the legislators their President's decrees inMexico and many South American Republics to-day. Let the people beware of placing such vastpowers in the President's hands. It matters not how honest the President and those who surround himare to-day. The time will come when such powers will be used for the destruction of the people'sliberties.

212

Lowell, Government and Parties in Cont. Europe, vol. ii, p. 197.

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IX STATE CENTRALIZATION THROUGH COMMISSIONS AND

COURTS"As to government, all discontent springs from unjust treatment. Idiots talk of agitators; there is butone in existence, and that is injustice."SIR CHAS. JAMES NAPIER."Every function superadded to those already exercised by the government, causes its influence overhopes and fears to be more widely diffused, and converts, more and more, the active and ambitiouspart of the public into hangers-on of the government, or of some party which aims at becoming thegovernment. If the roads, the railways, the banks, the insurance offices, the great joint-stockcompanies, the universities, and the public charities, were all of them branches of the government; if,in addition, the municipal corporations and local boards, with all that now devolves on them, becamedepartments of the central administration; if the employees of all these different enterprises wereappointed and paid by the government, and looked to the government for every rise in life; not all thefreedom of the press and popular constitution of the legislature would make this or any other countryfree otherwise than in name. And the evil would be greater, the more efficiently and scientifically theadministrative machinery was constructed the more skillful the arrangements for obtaining the bestqualified hands and heads with which to work it."JOHN STUART MILL."From these principles arose that venerable institution which none but a free and simple people couldhave conceived, trial by peers; an institution common in some degree to other nations, but which morewidely extended, more strictly retained, and better modified among ourselves, has become perhaps thefirst certainly among the first, of our securities against arbitrary government."HALLAM.

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CHAPTER IX STATE CENTRALIZATION THROUGH COMMISSIONS AND

COURTSThe source of local self-government and its valueLOCAL self-government in the different states is the preparatory school in which the citizen acquiresthe rudiments of government, and always has been justly regarded as of the highest importance inmaintaining the Republic. The people need not look to the constitution of their state for this right. Theyhad the right before the constitution, which presupposes an organized society, law, order, property, andpersonal freedom. Usages, customs, maxims, modes of thought, the method of trying facts by juries,the mutual responsibility of neighborhood interests, the sentiments of manly independence and selfcontrol which make good citizens, these are the sources of constitutional government; they precedeconstitutions, and without their existence a constitution would be a lifeless skeleton.One great reason for the subversion of so many constitutions in France since the French Revolution isthat the Constituent Assembly, for the purpose of destroying local self-government among the people,broke up the ancient divisions of the country and formed eighty-six departments, thus destroying allthe traditions of the people as to local life. We are given to attributing our liberty to the securities of aconstitution. No greater mistake could be made. The traditions of English liberty which the forefathersbrought to this country, the local self-government which they established in towns and counties, theirhabits, customs, and usages have been the source of our liberties. The Constitution is simply themeasure of the rights delegated by the people to their governmental agents, and secures thempractically no rights which they did not have before its enactment. Jefferson, speaking of the benefitsof local self-government, well said: "These wards called townships in New England are the vitalprinciple of their governments, and have proved themselves the wisest invention ever devised by thewit of man for the perfect exercise of self-government and for its preservation." Professor Lieber says:"Self-government, general as well as local, is indispensable to our liberty." De Tocqueville declared:"Those who dread the license of the mob and those who fear absolute power ought alike to desire thegradual development of provincial liberties. ... A centralized government is fit only to enervate thenations in which it exists." 213During the last twenty or thirty years we have been busily at work, through our legislatures, inhastening back to the kind of government that gave the guilds their privileges and sought to dictate asto the minutest details of life. The state, as in those days, has commenced the eternal intermeddlingwith the affairs of every locality through state commissions. It took a century or more to get rid ofrestrictive legislation and the state's habit of controlling all the domestic affairs of man by law, andnow we have commenced to return to the same conditions which required centuries of struggle todestroy. The growing absence of the habit of self-government can be seen in every village and hamletin the land. The want of confidence of the people in their ability to build their roads and manage theirlocal matters has been increasing under the new regime. At the rate we are going, it will be but a fewyears before state governments will have taken upon themselves all local affairs.We have come in recent days to establish a kind of government known as government by commission.These commissioners are not nominated by the people, not elected by the people, not subject to thecontrol of the people, and not even subject to the control of the executive, a portion of whose duties213

Democracy in America, chap. v, p. 99.

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they perform. Their duties are prescribed by the legislature, and the governor has really no morecontrol over them, although their duties are executive in nature, than he has over the action of a head ofa distinct department of the government elected by the people.Government by commissions in MassachusettsMassachusetts was the first state to institute this form of government. In 1837 she established a stateboard of education; in 1852 a state board of agriculture ; between that time and 1895 thirty-two othercommissions. The governor of Massachusetts, in 1885, appointed a commission of three men to takecharge of the whole police administration of the City of Boston. He had no power to remove these menwithout the consent of the Council of State. They were not responsible to the legislature nor to thepeople of Boston, who were expressly excluded from all control. The power of granting licenses forthe sale of liquor was also vested in this commission, and the fees therefrom were devoted to payingthe expenses of the police. In 1894 a similar commission was appointed over Fall River. In 1893 wasestablished the state highway commission, consisting of three members appointed by the governor andcouncil, which took charge to a considerable extent of the highways of the state. 214In 1891 Governor Russell, in his address to the legislature of Massachusetts, said: "With much truthMassachusetts has been described as a commission-governed state. Its great departments of education,health, charities, prisons, reform schools, almshouses and workhouses, agriculture, railroads,insurance, fisheries, harbors and lands, savings banks and others are governed by independent boardspractically beyond the control of the people. Besides these there are commissions on gas, pharmacy,dentistry, civil service, arbitration, cattle, wrecks, pilots, State aid, and others for special and temporarypurposes. Almost without exception the members of these boards are appointed by the governor, butonly with the advice and consent of nine other men. Their tenure of office is usually for a term ofseveral years, often without power of removal by anyone, sometimes subject to removal for cause orotherwise by the governor, with the same consent. The latter power in effect necessitates a trial uponformal charges, which seldom would be made or could be proved except for flagrant malfeasance inoffice. The subordinate officials are generally appointed by the boards. These boards and their workare practically beyond the control of the people, or of anyone immediately responsible to them, exceptin the limited power of the governor occasionally to appoint a single member. The people of the statemight have a most decided opinion about the management and work of these departments, and giveemphatic expression to their opinion and yet be unable to control their action. The system gives greatpower without proper responsibility, and tends to remove the people's government from the people'scontrol." In Massachusetts, however, many public-spirited citizens in earlier days served upon theseboards without receiving any pay for their services, and the governor and his council have exercisedrare good judgment in the selection of the members of the different commissions; so that it may be saidthat if there is any state in the Union where arguments can be found in favor of such government, it isin that state.New YorkAs early as 1857 New York established a commission for the regulation of the railroads. But therailroads, which even at this early date exercised the same kind of influence over the legislature whichhas been growing since, determined to do away with this commission. They knew that the oppositionwould come from the leading commissioner and so, to induce him to resign and make no opposition,214

Bradford, The Lesson of Popular Government, vol. ii, pp. 27-31.

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they paid him $25,000. The attorney of the Erie Railroad, testifying before the Hepburn Commission in1879, said: "I was the attorney of the Erie Railroad at that time " (referring to 1857) ; "I specially usedto attend to legislation that they desired to affect or oppose. ... I remember the appointment of thatcommissioner. . . . We agreed that if they" (the leading railroad commissioner) "would not oppose therepeal of the law we would pay $25,000, and have done with the commission; it was embarrassing." 215In the same year that the legislature created a railroad commission it also created a metropolitan policedistrict, including the counties of New York, Kings, Westchester, and Richmond in a district to becalled the Metropolitan Police District of the State of New York, and it authorized the Governor, byand with the consent and advice of the Senate, to appoint five commissioners of police, three fromNew York, one from Kings County, and one from Richmond and Westchester, whose terms of officewere to be three years. This commission was given entire control over the police of that district. Theconstitutionality of this act was vigorously opposed but was upheld in the Court of Appeals. 216In 1857 the state board of charities was created in New York, and in 1880 the state board of health.State commissions have greatly impaired local self-government along many lines. They have takenover the control of the insane, of charitable institutions, and of reformatories. Commencing with 1880,when there were but three commissions existing, forty-one commissions came into existence by 1904.In the Comptroller's report of 1904 a statement is given showing that the payments made from the statetreasury, on account of the salaries and other expenses of the new officers and commissions createdsince 1880, had amounted to $66,238,254.39. 217 In 1897 the roster of state employees connected withthese commissions occupied about 130 pages of the report of the Civil Service Commission andincluded about 5,000 persons. The state expenditures for commissions to-day are probably five or sixtimes the entire expenditures of the counties and towns.The cause of the great increase of state expenditures in New York is accounted for to some extent bythe relations existing between state senators and assemblymen and these commissions. The membersof a commission are always interested in getting as large appropriations for the work of theircommission as possible. Therefore they resort to the process of lobbying with members of thecommittees having charge of appropriations. The chairman of a committee of the Senate or Assemblyis always a man whose influence is to be sought and who must be brought to their way of thinking. Forsome years past a chairman of a committee of the Senate has been at the same time the counsel inlitigation for one of these commissions and in one year has been paid about $9,000 as legal fees out ofthe appropriations reported favorably by his committee for this commission. 218In 1906, according to Attorney-General Jackson, over $300,000 was paid out in special fees tolawyers, as counsel for the various commissions and departments of government, many of thoselawyers being at the same time members of the legislature. During the same period the whole expensesof the Attorney-General's office were only $131,270. It is estimated that during the last ten years$3,000,000, at least, has been paid out to special counsel, most of whom were doing legal work forthese commissions, and many of whom were either Senators or Assemblymen. 219

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ConnecticutThe small state of Connecticut, besides its minor boards and commissions, some twenty in number, hasfourteen paid commissions with a total of forty-seven members. They include insurance, railroads,highways, banks, school funds, building and loans, fisheries and shellfish, labor and labor statistics,dairies, cattle, taxes, barbers and saloon licenses. All these commissions but two are of a political orpartisan character. These commissioners thronged the state capitol at Hartford, during the last winter,engaged largely in lobbying with legislators to accomplish legislation in behalf of railroads and otherlike corporations. The present Governor Woodruff of that state, in his speech accepting thenomination, pledged himself to remove this kind of evil. In his message to the legislature hecommented at length upon the abuses in the state commissions, and he removed from office the statetax commissioner, because of his having been engaged as a lobbyist in the state legislature. Severalyears ago the abuses of the County Commission, which has charge of the granting of licenses, becameso flagrant that a law was passed allowing appeals from its decisions to be taken to the courts. TheRailroad Commission is notoriously corrupt, and most of the commissioners are regarded as holdingsinecure places as spoilsmen, and as engaged in caucuses, conventions, and the lobby, in behalf ofpolitical aspirants and private interests. 220We are apt to attribute bad government in our country to the fact that a considerable proportion of thevoters are recent immigrants unacquainted with our customs and habits. In Connecticut we have in thetowns outside the cities many descendants of the early inhabitants of that state. In revolutionary daysConnecticut was the most democratic and the best governed state of the thirteen, but to-day, governed,not by the cities, which are deprived of their representation through a rotten borough system, but by thetowns, she has about the most corrupt government to be found in any state in the Union. In RhodeIsland, the history and government of which is very similar to that of Connecticut, we find the city ofProvidence, with nearly one half of the entire population of the state, represented only by a singleSenator in a Senate of thirty-eight members. Twenty small towns, containing but eight per cent of thepopulation, are able to control the legislation of the state against ninety-two per cent of the population.Both these states are controlled by a representative system nearly as bad as that found in Englandbefore the Reform Act.New HampshireSimilar conditions exist in New Hampshire. A correspondent of the New York Evening Post, underdate of February 10, 1897, after describing vividly local self-government as it existed many years agoin that state, said: "All this has entirely either disappeared or is fast vanishing. In New Hampshire thehighway and school districts have been abolished; state officials have been multiplied and theirfunctions extended. 'The legislature,' says the Mirror, 'regulates our outgoing and our incoming, tells usin what pond we must not catch pickerel, and on whose land we may hunt chipmunks; it dictates whatwe shall eat and what we shall drink. Now the idea is steadily making headway that the state shallcontrol and support the schools and build the highways.' "South CarolinaSouth Carolina, after conducting a state dispensary for the sale of liquor throughout the whole state fora period of thirteen years, has gone back to the old system, and local option gives to every county the220

Letter to the N. Y. Evening Post, March 4, 1907.

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choice between prohibition and a dispensary of its own conducted by local officials. The officialinvestigation of two years ago showed great scandals connected with the administration of thedispensary law, and the whole scheme was brought into discredit.Self-government is a matter of absolute right on the part of localities. The state cannot take it away,because the people, originally possessing the right, have not given the legislature, through theirconstitution, the power to take it away. 221 The people of the counties, towns, and villages are entitledof right to determine who shall rule over them. They cannot be deprived of this right by the legislatureor by the heads of departments. This right is the very basis of all government in this country.Notwithstanding this, there is nothing which affects the citizen from infancy to the grave which is notsubject to regulation by these commissions. Nothing is left to the uncontrolled will of the individualcitizen. He eats, he drinks, he lives in subordination to the control of a multitude of administrativeofficers, and, thus governed, he pities the people of Prussia and Russia for their subjection to thearbitrary government of a bureaucracy.Benefits of commissions and dangers therefromI am aware that much can be said in favor of commissions to control sanitation, education, theadulteration of foods, the destruction of game and fish, and especially the preservation of the forests.Much indeed can be said in favor of factory inspection, the arbitration of labor disputes, and theexamination of banks and insurance companies. Many of the commissioners are men with scientificknowledge and fervent enthusiasm for the extension of public benefits through the departments overwhich they preside. Because a considerable proportion of the population of a state is found in its cities,and because of the great concentration of manufacturing industries, the control of many things, whichwere left to localities in olden days, can be better controlled now by the state than by the locality. Inmatters where the whole state is interested, arguments in. favor of state control can be adduced.But these commissions have been multiplied unduly so that they interfere very largely with local selfgovernment. They are exercising judicial and legislative powers which it was never contemplated for amoment that they should exercise. If they come to believe that extraordinary powers belong to them,they can prohibit the carrying- on of a business by refusing a license to it. The commissioners in nosense are responsible to the people, and are quite indifferent to public sentiment. Even if the people ofthe localities could not perform such duties as well as the commissioners, still in their performancethey would retain their habit of controlling their local affairs, and that is of the greatest publicimportance. Long ago it was said: "A man can judge better in relation to his own affairs than sevenwatchmen on a tower." And the people of a town, or a village, or a small city, are, as a rule, muchbetter judges of what they need than are these commissioners.Another objection to the existence of these commissions is that they split up the executive power of thegovernor, and that each commission has a kind of administrative veto on laws simply by not enforcingthem. There is no such thing as securing an honest and faithful administration of the laws when wehave one governor and forty or fifty commissions dividing the executive duties between them. Thepeople of a state can watch a governor, and they will condemn his action if wrong. But they cannotwatch forty commissions, and but a few people will know anything about what they are doing. Thismeans that the commissioners have a perfect opportunity to carry on matters in their own way.Government by commission is not responsible government. We provide a governor to execute the laws221

Rathbone v. Worth, 150 N. Y., 459.

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and administer the affairs of the state, and then permit forty or fifty commissions to divide theadministration with him. We hold him responsible for their acts over which he has no control; andwhen he attempts to remove a commissioner, as Governor Hughes did in the state of New York, theSenate refuses to consent, and thus a governor is hampered by the continuance in an important officeof an unworthy public servant.The truth is that public interests would be furthered by allowing the governor to select all the heads ofdepartments in the state, and then hold him strictly accountable for the whole administration. In boththe state and our larger cities it is impossible for the people to keep track of the heads of departments.The one way to enforce responsible government is to leave to the mayor of the city and the governor ofthe state the control and responsibility of all departments, by giving them the power both to appointand remove such officials. This is a better kind of centralization than that involved in government bycommission, where the people are unable to know and control conditions.The Pennsylvania Ripper Bills and State House appropriationsThere has been no action upon the part of legislatures in recent days which has tended more towardcentralization than attempts to control the local government of cities for partisan purposes. In March,1901, the public authorities in the cities of Scranton, Pittsburg, and Allegheny were opposed to acertain section of their own party of the state republican machine in Pennsylvania. To get rid of theobjectionable mayors and other officers of these cities the act of March 7, 1901, entitled an act for thegovernment of cities of the second class, was passed by the Pennsylvania legislature. It changed thecharters of each of the three cities of Pittsburg, Allegheny, and Scranton, and put them under specialprovisions, different from all other cities of the state, legislated out of office the mayor and other cityofficers, and placed the government of these cities in the hands of a high executive officer of thecommonwealth residing at Harrisburg, thus doing away with local officers elected by the people whoseterms of office had not expired. And the Supreme Court of Pennsylvania actually sustained that kind oflegislation. 222In revolutionary days this great state of Pennsylvania had what was known as a council of censors,composed of two persons from each city and county in the state. They were elected for the first time in1783 for a period of seven years. It was the duty of this body to inquire whether the Constitution hadbeen violated, whether the public taxes had been justly levied and collected, and whether the laws hadbeen duly executed. They had power to summon witnesses before them and to compel them to producepapers and reports. They had the power to order impeachments and to recommend the repeal ofunconstitutional laws. They could call a convention for revising the Constitution, and one of theprovisions which they were instrumental in putting into the Constitution would be a wholesomeprovision to limit the supply of politicians in that state to-day. This provision was as follows: "Asevery freeman to preserve his independence, if without sufficient estate, ought to have someprofession, calling, trade or farm whereby he may honestly subsist, there can be no necessity for, oruse in establishing offices of profit, the usual effects of which are dependence and servilityunbecoming freemen in the possessors and expectants, faction, contention, corruption, and disorderamong the people. But if any man is called into the public service to the prejudice of his private affairshe has a right to a reasonable compensation, and whenever an office, through increase of fees or

222

Commonwealth v. Moir, 199 Pa., 534.

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otherwise, becomes so profitable as to occasion many to apply for it, the profits should be lessened bythe legislature." 223A hundred and twenty years later we see the state politicians of Pennsylvania permitting a contractor,on a contract of $9,000,000 for the erection of a statehouse, to make a profit of from $4,000,000 to$5,000,000. Mahogany desks which cost this contractor $40 were sold to the state for $864, a profit of2,060%. Clothestrees that cost $2 were sold for $73, a profit of 3,550%. Corruption and usurpation ofpower go hand in hand. The people of Pennsylvania do not need censors of morals, but they do needthorough regeneration.Bipartisan commissions and government of cities from state capitalsFor the last thirty years or more it has been a common practice with the legislature of New York toamend the charters of cities by creating police commissioners, and fire commissioners, and othercommissioners, with the provision that these commissioners should be selected in equal numbers fromeach of the two principal political parties. Such amendments have been made to the charters of thecities of Buffalo, Utica, Syracuse, Elmira, Rome, Lockport, Yonkers, Watertown, and Albany. Finally,the Court of Appeals, in a case which arose in Albany, declared an act of this kind unconstitutional asan interference with the absolute right of the city to control the election of its local officers. 224In 1900 the state of Michigan had an experience with this same kind of legislation. Detroit had electeda Democratic mayor. The Republican Governor of the state, acting in connection with the defeatedofficials of his party in Detroit, secured the passage of a bill depriving the Mayor of his power ofappointment of city officials and giving it to the City Council, and through this Council the statecontrolled the city. In 1905 the Massachusetts legislature passed an act uniting the City of Boston withthe state in making certain improvements, but this bill was vetoed by Mayor Collins and did notbecome a law. A few years ago the City of Chicago was controlled by the legislature of the state ofIllinois. Finally, the people of Chicago succeeded in procuring the right of a referendum for legislationaffecting the city, and secured self-government for themselves.Legislation by committeeThe methods of state legislation are doing much to centralize power in the state. All legislation iscarried on in the state legislatures in the same manner that I have described in the chapter onCongressional Usurpation. The struggle on the part of assemblymen and senators is to secure anappointment on one of the leading committees. Behind the doors of the committee rooms is hidden thecorruption which has done so much to discredit state governments. The chairman of a committeefrequently will not bring a bill referred to that committee before it at all. Many of the proposed lawsare never reported by the committees. Subcommittees, selected by the chairman, are often employed tostrangle a proposed law. Special legislation affecting localities, once reported from a committee, isalmost sure to pass the House with little or no discussion. The result is that the people are unable toprocure information about what is going on in their legislatures. The division of the legislature intomany small legislative bodies, the lack of discussion in the full body, and the power of the Speaker andthe Committee on Rules, in the last days of a session, to jam through hundreds of bills without any

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discussion whatever, result in the passage of many measures which never could be passed if publicattention was directed to them and public discussion encouraged.Overlegislation, sumptuary laws, and special legislationThese methods have brought a bad reputation to the state legislatures. Everywhere there are attempts tolimit their meetings. Only six states now have annual sessions Georgia, Massachusetts, New Jersey,Rhode Island, New York, and South Carolina. In Mississippi and Alabama the legislature meets onlyonce in four years. We make laws in our state legislatures by the thousands to be laughed at. No othercountry in the world permits so many restrictive and sumptuary laws. Many of these laws, like thoseprohibiting the sale of liquor, are passed at the request of good people, the members well knowing thatthey will never be enforced. The usual result of such legislation is that police officials sell the right toviolate the law and that its violation is approved by a large part of the people. The popular remedy forbad morals, social sins, and all kinds of human dereliction, is an act of the legislature. There is no surersign of decadence than this mania for such law-making. During the five years from 1899 to 1904,45,552 acts were passed by American legislatures. Of these enactments, 16,320 were public or generallaws, while the remainder were special or local. 225 The legislatures of the different states in our Unionprobably pass more laws each year than are passed during the same time by all the other legislativebodies in the world, outside of the Congress of the United States.Pinckney, of South Carolina, Madison, Hamilton, and several other members of the ConstitutionalConvention urged that the National Legislature should have authority to negative all laws passed bythe states which they thought were improper. This was advocated for several days and with great forcebefore the Convention, but was finally defeated. Lansing, of New York, with little comprehension ofthe future, declared that such a scheme was impracticable. He said: "Is it conceivable that there will beleisure for such a task? There will on the most moderate calculation be as many laws sent up from theStates as there are days in the year." In the ancient town of Locri, in Magna Grcia, the first writtencode of laws in the ancient Roman world was promulgated. One of its most wholesome provisions wasthat the proposer of a new law should stand forth in the public assembly with a rope about his neck,and that if the law was rejected its proposer should be strangled. Such a provision in our Americanstates would be a wholesome preventive upon hasty legislation. Buckle has well said that for fivehundred years all advance in legislation has been made by repealing laws.Before the Civil War considerable honor was connected with the office of Member of Assembly orState Senator. In more recent days men of high character as a rule have not sought such positions.Many a lawyer has sought the office of Member of Assembly or Senator with no higher, purpose thanto attach himself to industrial interests and thus procure a clientage. It is those kind of legislators whothrough secret committees get their clients special legislation. In Alabama, California, Kentucky,Louisiana, and Mississippi statutes have been passed in recent years exempting cotton or woolenmanufacturers, beet sugar plants, or other manufacturing enterprises from local taxation for periods offrom three to fifteen years. The legislatures of no less than sixteen different states have passed similarlaws. In the Maryland Legislature of 1900 fifteen acts freeing bond issues from a state tax were passed.It would seem that all this line of legislation was clearly unconstitutional.

225

Reinsch, American Legislatures and Legislative Methods, p. 300.

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A revolution in the practice of appellate courts as to setting aside verdicts as against the weightof evidenceThere is no abuse in our day, however, which tends more to centralization of state government than thefrequent exercise of the discretion in state appellate courts of setting aside judgments, entered uponverdicts of juries as against the weight of evidence. The petit jury, in something like its present form,has existed since about the reign of Henry II (1154-1189). So highly was this right regarded that manyof the original thirteen states reluctantly approved the Constitution without the existence of thissafeguard, and by one of the first ten amendments it was secured to litigants in United States Courts.Every one of the original thirteen states guaranteed this right to litigants in its courts. Every one of ourstates to-day secures this right by its constitution, and yet every lawyer with wide experience in thetrial of cases is aware that the verdict of a jury has entirely lost its conclusiveness, and is treated asmerely advisory to the court. Twenty years ago no principle of law was better settled than that a verdictof a jury could not be set aside unless it was so contrary to the preponderating proof as to be evidencethat the jury had been controlled by prejudice, passion, or corruption. 226 Today it is a commonoccurrence in appellate courts, in about every state of the Union, to set aside the verdict of a jury whenthe court is not satisfied with its justice.The judge who presides upon the trial of a case before a jury has an opportunity to observe theappearance of the witnesses, and to form a reasonably correct impression as to their credibility. Thoseimpressions might well amount to a conviction which would justify his action in setting aside a verdictas against evidence. But an appellate court has no opportunity to see the witnesses except upon paper,and it has been well said that all witnesses look alike upon paper. They do not look alike to the jury.The manner in which a witness walks when called to the stand, his attitude in taking the oath, his face,which may be indictable at common law, all these things are seen by the jury, and their conviction asto the credibility of his testimony cannot well be reviewed in the higher court. Notwithstanding thesereasons, apparent to anyone why verdicts should not be lightly set aside, it is becoming a mostcommon occurrence for appellate courts to reverse such judgments. If the verdict of a jury may be setaside in any case where the court is not satisfied with it, if the court must be satisfied as well as thejury, then the jury trial ought to be dispensed with altogether. It has been held, in recent days, that ifthere has been three successive verdicts in favor of one party, the Appellate Court will not reverse thefinal judgment. 227 But even this rule, which requires a poor man to get thirty-six jurors to agree that hehas proved his case, has been declared by an appellate court as untenable, the court holding that, if in

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its opinion the verdict is not sustained by the evidence, it matters not how many times a similar verdicthas been rendered in the case, the court should set it aside. 228Reversals of judgments for technical defectsBecause of this manner of regarding verdicts, and because of the technical grounds on whichjudgments are reversed in higher courts, ordinary litigation now is frequently a matter of years ofdelay, and to poor plaintiffs is equivalent to the miscarriage of justice. Thirty to forty per cent of allappeals in the several states result in reversals. If any error exists as against the appellant, howeverslight, either in the admission of evidence or in the charge of the trial judge, the presumption ofprejudice to the defeated party requires a reversal. A large proportion of the decisions of higher courtsare made by only a majority of the judges. In all the cases wherein the United States Supreme Courthas held a national statute to be unconstitutional, before 1894 there were only six in which the Courtwas unanimous. Notwithstanding that a majority of an appellate court can reverse or affirm ajudgment, the consent of every juror in most states is required in order to obtain a verdict. The result ofthis constitutional requirement is that there are delays and miscarriages of justice.In manufacture, agriculture, and every other field of human industry or activity, in recent years therehas been a steady advance movement. Thirty years ago, however, the trial of civil cases was moresimple and expeditious than it is to-day. The whole tendency in recent times has been to obstruct thespeedy conclusion of litigation by reversals upon technical grounds which do not go to the merits, orbecause appellate courts, which perhaps never read the whole of the evidence, are dissatisfied with theverdict. This results practically in depriving the citizen of rights secured to him by the Constitution,and is one of the most grievous conditions in our day. It would not take long to gather from the reportsof the different states of the Union, hundreds of cases which have been running in courts for periods offrom five to twenty years, and in which there have taken place from three to ten trials. In the lawreports of England, for the period from 1890 to 1900, if appears that new trials were granted in lessthan 3% of all the cases appealed. 229 It has well been said by an able judge that "There is no scourgein the hands of the strong- against the weak like this scourge of new trials. It can wear out the strengthand endurance of the weak, and it has been used for that purpose." 230To the delays in the administration of the law on its criminal as well as its civil side may be attributedthe condition of lawlessness and lynching which is so prevalent in our country. In no other civilizedcountry does such a condition exist. The jury system undoubtedly has imperfections, but comparedwith other human institutions to procure justice it has best borne the test of long experience. Thissystem has done more among English-speaking people to maintain freedom than all other causescombined. You hardly can find a lawyer of wide experience in the trial of cases before juries who doesnot believe that under the guidance of an intelligent judge the system brings justice in the majority ofcases. There is no better proof of its wisdom than the fact that it did not exist among the continentalcountries of Europe until the nineteenth century, and that during that century it has been adopted bymany of the most enlightened states, and that it always has been continued in any country where it hasbeen adopted. In England, even James II was obliged to send the Bishops to trial by jury, and endurethe mortification of seeing them acquitted.

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The requirement of unanimous verdicts in jury trials

The abuses that have come in jury trials are largely the result of the requirement of a unanimousverdict. Those abuses, to a much greater extent than generally has been believed, have been the resultof tampering with one or two jurymen in important cases. That such a system is carried on in somecities is established beyond the slightest doubt. The people owe it to themselves to change theprovisions of their state constitutions requiring a unanimous verdict, and to allow the verdict of ninejurors to determine the rights of the parties. No change in the fundamental law of the states could bringsuch wholesome results as this.The state courts of Connecticut furnish us with an example of the results of doing away with jury trialsin a certain class of cases. It has become the practice in that state in many actions in tort for thedefendant not to interpose an answer to the complaint. By this device the amount of damages sufferedby the plaintiff is determined by the court without a jury. The right of a plaintiff to have his damagesassessed before a jury in such cases has been seriously contested. But the Connecticut appellate courtshave decided that he has no such right. 231 The result of this holding has been that in cases of seriousinjury, or even of death resulting from the defendant's negligence, the plaintiff frequently has receivedat the hands of the judge but slight damages.The slaughter through negligenceThe result of these delays and miscarriages of justice is that negligence has become a normal conditionin our country. "Let it go at that," seems to be written all over the face of our railway management andindustries. Between June 30, 1897, and June 30, 1900, war was being carried on between Great Britainand the South African Republic, but that war, with its sharp-shooting Boer farmers, was but slightlymore deadly to the British forces than the negligence of the railways of the United States was to ourpeople. During those three years ending June 30, 1900, 21,847 persons were killed on Americanrailways. During the same time the British forces in South Africa, including deaths from disease, lost22,000 men. In thirteen years ending June 30, 1900, according to the official reports, 86,277 peoplewere killed on the railways of our country. During the same period 469,027 persons were injured.The Star Chamber of ColoradoAway back in the days of carpetbag government in Louisiana the courts commenced the use ofinjunctions to control political parties. The first injunction granted in those days astonished lawyers. Inour day, however, in the state of Colorado, the proceedings of the Star Chamber are quite outdone.Alvah Adams was elected on the face of the returns as Governor of Colorado. The Supreme Court ofthat state at General Term issued a temporary injunction staying the declaration of his election, foundthat there had been fraud in his election, punished some of the alleged wrongdoers for contempt ofcourt, and, without a particle of jurisdiction, conducted the whole matter to a conclusion satisfactory toitself.A year or two later a city election was held in Denver, and Supreme Court Judge Johnson, sitting atcircuit, sought through injunction against fraudulent voting to follow this precedent and conduct theelection in the same manner as the higher court had in the case of the Governorship. Thereupon thehigher court issued its writ of prohibition stopping Judge Johnson from exercising the jurisdiction231

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which it had exercised, although its power in the matter was the same as that of the Circuit Judge. Invain, counsel pleaded on the motion to dismiss this writ, that Judge Johnson was following theprecedent of the appellate court, and that, as a court at special term, he was entitled to do exactly whatthe appellate court, which was given original jurisdiction, had done in the Adams case. But theappellate court held that it had exclusive right to supervise elections by the high prerogative writ ofinjunction, while the other courts of general jurisdiction throughout the state had no such power.The state of Colorado has seen in the last few years a condition of open flagrant bribery, failure on thepart of the state legislature to carry out the constitutional amendment prescribing an eight-hour day, thesuppression of about every constitutional right of the citizen, the deporting of men and women fromthe state for the offense of agitation, and the forcing of the resignation of officers elected by the peopleby means of ropes about their necks. Nowhere in the civilized world, in recent times, have theconstitutional rights of the citizen been so shamelessly violated by the executive and the Courts as inthat state.John Doe warrants and exercise of arbitrary power in New York CityNo person who has been observing with care the conditions existing throughout our country in recentyears can help but see that there is a marked tendency to disregard the liberties of the citizen. For manyyears, in the city of New York, it has been common to arrest men without a warrant for misdemeanorsnot taking place in the presence of the officer. In fact, it has been a matter of common occurrence toarrest men at night without any written complaint or warrant, and to hold them to await the filing of acomplaint. The public prosecutors for many years have been in the habit of arresting men on what areknown as John Doe warrants, although in the case of John Wilkes, as far back as 1763, when theSecretary of State in England issued a general warrant for the persons of the authors and printers of theNorth Britain, it was held by the English Courts that such warrants were invalid,232 and since that timeno court has sustained their validity. The prohibition of such warrants is found in the FourthAmendment to the Constitution of the United States. Such a prohibition was found in the firstconstitutions of Massachusetts, Virginia, Vermont, Pennsylvania, and New Hampshire. Yet these seemtrivial rights to our public prosecutors. In like manner the right of the defendant in criminalproceedings to a speedy trial is steadily disregarded in the state of New York.Such violations of personal rights, continued for any considerable period of time, by and by willdestroy constitutional guarantees. The Mexican Constitution, passed in 1857, is almost a copy of ourown. It provides carefully for the rights of the defendant in criminal proceedings, yet by constant abuseit has come to mean nothing. A prisoner arrested is secluded for seventy-two hours after his arrest,during which time while in solitary confinement his statement is taken by the judge. The constitutionalprovision that he must be confronted by the witnesses is complied with by reading the testimony of thewitnesses to the accused, and he is given an opportunity to cross-examine them only through thepresiding judge. In one way and another about all the safeguards of the prisoner are destroyed byconstruction. Under the Magoon code in Panama the presiding judge, with two mayors selected byhim, sit and try men on accusations of murder. Two votes of the three are sufficient to convict. Themen who are in the employ of the United States government, constructing this great water way, aresubjected to that kind of government by the United States, which so carefully has secured to its citizensin criminal proceedings the safeguards of the English law. Under our present autocratic tendencies,

232

Goldwin Smith, The United Kingdom, vol. ii, p. 201.

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with the growing disregard for personal rights, how long will it be before the same disregard willbecome permanent in our own criminal courts?Abuses a pretext for interference by the national governmentI have detailed these defects in our state governments because just such abuses give force to the crythat the national government should take the control of such matters from the states. Reverence forlaws and courts cannot long exist unless the lawmaking power and the administration o! the lawcontinue worthy of respect. Examples of justice in government are a thousand times more beneficial tothe people than the unbounded charity of our millionaires. It is the hasty, careless, and corruptenactment of laws, together with such execution of justice as I have described, which is bringing staterights into disrepute. Our modern state legislators are apt to mistake vexatious forms of coercion forlegitimate regulation of domestic affairs. We are unnecessarily multiplying legal restrictions uponevery form of human action, and if these are not enforced, the legislative, executive, and judicialpowers are brought into bad repute. Whenever a cry goes up against some evil condition the legislatureproceeds to enact a prohibitory statute or a penal law condemning it, and then very often it is leftunenforced.The remedyWe are apt to protect with a high degree of care all property rights, but fail to defend the liberties of thecitizen. All unreasonable restrictions upon his rights of action, speech, and public assembly are notonly not in keeping with our own ideas of liberty, but indicate a tendency toward such conditions asexist in Prussia, Russia, and other absolute governments. The way to stop usurpation of the nationalgovernment is to make our state governments what they should be, and endear them to the people bythe justice of their laws and the freedom afforded to innocent action. Patriotism in our states, instead ofdemonstrating itself in the careful study of our institutions and in an attempt to improve theircondition, finds its expression too often in vainglorious assertion and sentimental flag cheering.Manuals of patriotism for public schools prescribing patriotic exercises, and flag worship, and all thatsort of a thing, will avail nothing unless the states give to their people a kind of government whicharouses patriotism.The national government has no powers but those delegated to it by the states. The states, on the otherhand, are unfettered by any limitations whatever except through their constitutions, and their courts areespecially adapted to deal with the great mass of questions relating to life, limb, health, and thesecurity of property. When it appears that a corporation has procured its charter through bribery orcorruption, our state courts can destroy the charter of that corporation, except so far as liens upon itsproperty have passed into the hands of bona fide purchasers. The way to take care of combinations andtrusts, which through bribery secure special legislation, is through state law. The Attorney-Generalshould be given ample power to institute actions to declare such grants void. A simple remedy againstthe extortions of the trusts could be found in the power of the state governments to refuse permission tosuch combinations as are incorporated without a state to carry on business in that state. An agreementof this kind between many states would be found effective.Laws should be passed in every state requiring political parties to disclose under oath the sums paid toparty organizations on all occasions, the names of the persons paying them, and a full account of thematter. No measure could be more productive of good than the destruction of the committee system inour legislatures. The laws of each state should require that each bill and resolution, referred to aFederal UsurpationElectronically published by Family Guardian Fellowship

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committee, should be reported by the committee within ten days after its reference. The minority of acommittee should have the power to report a bill, although it has not been accepted by the committeefor the consideration of the Assembly or the Senate. In no way can the tendency to centralization be soeffectually lessened as by vigorous support of local self-government. The city, the county, the town,are the ones which suffer from special legislation. The functions of the town and the village and thecounty are impaired in every case where control of their local matters is taken over by the stategovernment. The positive, unquestioned sovereignty of the states in every detail of their reserved rightsshould be actually used and jealously guarded. In this way more than any other can we avert theencroachments of the national government.The National Republican party in 1860 expressly disclaimed any intention or any legal power tointerfere with state rights. Its national platform contained the following: "Resolved, That themaintenance inviolate of the rights of the states, and especially the right of each state to order andcontrol its own domestic institutions according to its own judgment exclusively, is essential to thatbalance of power on which the perfection and endurance of our political fabric depends." TheRepublican party to-day and the Democratic party would both declare and adhere to such doctrine ifthe people demanded it.The Presidents paternal interest in the Governors of New York and MassachusettsWhen Washington was President of the United States, so much dignity was attached to the position ofGovernor of New York that it was a point of etiquette whether Governor Clinton should first call uponthe President, or the President upon the Governor. When President Washington visited Boston, thesame question came up as to whether he should first call upon Governor Hancock or the Governorupon the President. The people in those days were most jealous of the dignity of their state officers andof the rights of the states. But all this has changed.A few months ago, Governor Hughes, of New York, became involved in a contest with the Senate overthe removal of Superintendent Kelsey of the Insurance Department. We, who are proud of ourGovernor and who know his fighting capacity, felt assured that he was right and that he was quiteequal to the occasion. In the midst of that contest the newspapers were filled with reports that thePresident had interfered in the contest, and, as an indication of his feeling, was about to appoint arevenue collector at Rochester in the interests of Governor Hughes. A short time before, the Presidenthad addressed this telegram to Governor Guild, of Massachusetts :

THE WHITE HOUSE, WASHINGTON, June l0th. Governor Curtis Guild,

Boston, Mass.:Have been requested on behalf of certain parties in Boston to interferewith the execution of Tucker, it being alleged that it is my duty so to doinasmuch as I have the power under the Federal laws.No showing has been made to me that I have such power, but, withoutregard to this, I desire to state to you that, in my judgment, your decisionnot to interfere with the carrying out of the sentence of Tucker seems to meentirely sound and commands my hearty sympathy. It seems particularly aFederal UsurpationElectronically published by Family Guardian Fellowship

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case in which there should be no interference with the carrying out of thesentence.THEODORE ROOSEVELT.Instead of approving such action on the part of the President when it favors the interests we approve,we should condemn it with all vigor. It would be commendable in the President, as a citizen and anindividual, to take an interest in the affairs of New York and Massachusetts, but as President hisinterference is not only uncalled for, but it is highly improper. The people of any state should resentsuch meddling in their affairs by the President of the United States. In no other way can they so wellvindicate the sovereignty and the dignity of the states in which they live. If they will not vindicatethose rights, if the words upon their lips, "I am a citizen of New York "; "I am a citizen ofMassachusetts," are not words of pride, they ought not to complain that the national government isrising in power and the state governments are declining.

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X USURPATION IN ADMINISTRATIVE LAW

"Administrative law is 'case law made not by judges but by government officials.'"DICEY."There is certainly danger in these delegations of preeminent trust."HALLAM."Common report or private information was at once indictment and evidence, and accusation was initself condemnation."FROUDE."The history of both France and Prussia is the record of the building up of a consolidated and powerfulstate by means of a great bureaucracy, directed from a single centre and pursuing a uniform policy; andso, in both countries, the people became accustomed to look to that centre, to the monarch and hisofficials for guidance in all affairs. . . . Administrative law 'relates to the organization and working ofthe national executive both central and local.'"PROF. ASHLEY."The little band of 167 special deputies, agents, and inspectors on the pay rolls of the government tenyears ago has been swelled to an army of more than three thousand."SENATOR FORAKER, Cleveland, December 21, 1907.

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CHAPTER X USURPATION IN ADMINISTRATIVE LAW

Nature and growth of administrative agenciesIn no branch of law to-day is there so great necessity for clear and definite ideas as in administrativelaw. The numerous commissions described in the last chapter, their existence in every state of theUnion, the rapidity of their growth, the complexity of modern commercial life, the power of interstatecommerce commissions to fix the rates of railways, the multiplication of commissions in the nationalgovernment, the imperial domain peopled by tens of millions of people, and the great consolidation ofeconomic interests, together with the impatience of our people for quick results, are all forces which,unless checked, will increase the field of administrative law. Just in proportion as it is increased therights and liberties of the citizen will be abridged.The nature of administrative law can be better determined by a description of its sources and itsoperation than by a definition. Administrative law is made by the rulings of a multitude ofcommissioners, and the heads and officials of departments in both the national and state governments.It involves the administration of all these commissions and departments. Private law regulates therelations of individuals between themselves and is administered by the courts. Administrative law, inthe main, regulates the relations between the individual citizen in the state and the state itself asrepresented by its officials. Of course this does not include criminal law nor constitutional law, butadministrative law is the supplemental and detailed application of all laws passed pursuant to theConstitution, and includes the nature of the relations between the administration and its agents, on theone side, and the private citizen, on the other, whenever he comes in contact with mere administrativeofficers. The making of by-laws, the assessment of taxes, the fixing of rates by the InterstateCommerce Commission, the decisions of the Secretary of War requiring the removal or alteration ofbridges upon the ground that they have become an obstruction to navigation, the decisions of each ofthe heads of departments, the determination of values of imported goods by the customs appraisers, thedecisions of the superintendent of education, the boards of health, the boards of fish and gameprotectors, and of hundreds of commissions created under the national and state governments, these allafford illustrations of administrative law.The number of commissions has been so great in recent years that it may be well said that we havegovernment by commission. In 1903 alone, about 140 new permanent state boards and offices werecreated, as well as some 75 temporary commissions and 39 investigating committees. 233 Scores ofstatutes are being passed every year giving to governmental agencies more power with the idea ofremedying abuses. The worse the abuse sought to be remedied the greater the temptation to exercisearbitrary power by the commissions. We look with interest to the Russian bureaucracy, but we fail toobserve that we are drifting toward just such absolute government at home. We are a republic in theOccident ruled largely by commissions, and an empire in the orient ruled by military power. From yearto year we are adopting precisely the same methods of bureaucratic government that have long existedin France, Russia, and Prussia.

233

New York State Library Bulletin, Review of Legislation, 1903.

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The Ju Toy Case

One of the most terrible abuses of administrative law in recent years was involved in the decision ofthe United States Supreme Court in the case entitled United States against Ju Toy. 234 Ju Toy, in theyear 1903, was a passenger on the steamship Dorick, returning from China to San Francisco. Theimmigration officers of San Francisco detained him as a person not allowed to enter the country underour laws. Ju Toy declared that he was born in the United States, had always lived here, and that theyhad no right to turn him over to the master of the vessel to be returned to China. Now observe the kindof a hearing he had. The rules of the Immigration Bureau require its officers to prevent communicationbetween a Chinese immigrant and anyone aside from the immigration officers. They conduct a privateexamination to determine whether he has the right to land, the head of the commission designating theonly witnesses who may be present upon the examination. Generally no opportunity is given to theperson to procure counsel. After such a hearing as this, Ju Toy was held by the Commissioner ofImmigration as not entitled to admission. The only remedy for such a decision is an appeal to theSecretary of the Treasury. 235 The person who has been tried and found not entitled to enter the countrymust take this appeal within two days after the decision. Within three days thereafter the record mustbe sent to the Secretary of the Treasury at Washington. The rules of the Department require that everydoubtful question shall be settled in favor of the government, and that the burden of proof in such acase rests upon the person claiming- the right of admission. The Secretary of the Treasury heard thisappeal and affirmed the decision.Then Ju Toy procured a writ of habeas corpus from a District Judge of the United States, alleging thathe had been born in the United States, that he was a citizen thereof, that he had gone to China on avisit, and that he had returned to this country and had been denied admission by the head of theCommission of Immigration, that an appeal had been taken to the Secretary of the Treasury, and thatthe decision had been affirmed, and that he was wrongfully deprived of his liberty. The District Judgegranted the writ of habeas corpus, and upon the return thereof the Court refused to dismiss the writ, butappointed a referee to take the testimony of the witnesses, and report his findings of fact as to whetherJu Toy had been born in this country and was a citizen. After a thorough examination the refereefound, as a matter of fact, that Ju Toy was a citizen of the United States, and this decision wasconfirmed by the District Court.An appeal was taken from this decision to the Circuit Court of the United States, and the Court, beingdivided as to the correctness of the decision, certified interrogatories to the United States SupremeCourt. The important question certified was this: "Should the court treat the finding and action of suchexecutive officers " (referring to the Immigration Commissioner and the Secretary of the Treasury)"upon the question of citizenship and other questions of fact as having been made by a tribunalauthorized to decide the same and as final and conclusive, unless it be made affirmatively to appearthat such officers, in the case submitted to them, abused the discretion vested in them, or in some otherway, in hearing and determining the same committed prejudicial error." The United States SupremeCourt, Mr. Justice Holmes writing the opinion, found, as a matter of law, that it mattered not whetherthis man was a citizen of the United States or not, if this administrative tribunal, the Commissioners ofImmigration, decided that he had not been born in the United States, and was not entitled to enter thecountry, and the Secretary of the Treasury upon the evidence taken confirmed that finding on appeal,

234235

198 U. S., 253.

United States v. Sing Tuck, 194 U. S., 161.

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that it was conclusive, and that there was no redress for Ju Toy. Justices Brewer, Peckham, and Daydissented, Justice Brewer writing a vigorous opinion.So we have this condition: if a Chinaman is born in the United States and unquestionably is a citizen ofthis country, and goes back to China for a visit and returns, and is subjected to such a summary trial asto citizenship and found by the Immigration Commissioner not to have been a citizen, and the papersare certified to the Secretary of the Treasury who determines that the decision of the Commissioner iscorrect, the man must be banished from the country, although he is a citizen, because the finding of theCommission, under such circumstances, is conclusive upon him, and no court has the power tointerpose and protect his liberties.Outside of Russia and Turkey there is not a country in Europe to-day where it would be possible forsuch a wrong to occur. The result of such a decision is so far-reaching in its effects as to imperil theliberty of every citizen in this country. If the United States Supreme Court can make the decisions ofsuch administrative bodies binding upon the citizen, under rules and regulations where it is practicallyimpossible for him to protect himself, and he can be banished from the country and deprived of hisconstitutional rights in this manner, his liberty is not worth a fig. The learned Justice writing thisopinion says: "If, for the purpose of argument, we assume that the Fifth Amendment applies to him,and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion thatwith regard to him due process of law does not require a judicial trial."1 Due process of law before acommission without an opportunity to talk with anyone but the officers, without opportunity toprocure witnesses, without chance to cross-examine witnesses, without any counsel, with the wholematter involving a right almost as dear as life itself disposed of summarily by administrative officialsin a country where the Bill of 1 198 U. S., 263.Rights, which has secured to Englishmen their liberties for hundreds of years, is made a part of theConstitution? The liberty of the citizen is indeed precarious if this is due process of law. Can a citizenof the United States be excluded from his country except in punishment for a crime? Dreyfus, undermilitary rule in France, was tried by court-martial, found guilty, and banished to solitary confinementin a distant island of the Atlantic; and the conditions of his conviction showed more care for the rightsof a citizen than existed in this case. The injustice done Dreyfus eventually created a great disturbanceeven in France, and our people and all other liberty-loving people jeered at the French for theirdisregard of the liberties of a citizen.Again, Mr. Justice Holmes says: "It is unnecessary to repeat the often quoted remarks of Mr. JusticeCurtis, speaking for the whole court in Murray's Lessee v. Hoboken Land and Improvement Co., 18How., 272, 280, to show that the requirement of a judicial trial does not prevail in every case." Yet thecase cited by the learned judge was a mere distress warrant issued by the solicitor of the United StatesTreasury, involving simply the rights of property, and the court in that case said: "To avoidmisconstruction upon so grave a subject, we think it proper to state that we do not consider Congresscan either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suitat the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicialpower a matter which, from its nature, is not a subject for judicial determination." Is that case ajustification for banishing a man from his own country to avoid holding that a mere administrativetribunals decision was not conclusive. Thus Ju Toy was compelled to suffer banishment, and was notpermitted to be relieved by a writ of habeas corpus even after a referee had reported that he was acitizen of the United States.Federal UsurpationElectronically published by Family Guardian Fellowship

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We are given to boasting of our liberties. We pity the Chinamen subject to arbitrary power. TheEmperor of China is said to have the right, after examination and determination that one of his subjectshas committed a crime, to drive bamboo splinters under the disrespectful finger nails of the subject,and then chop off his head to relieve the pain. Such exercise of power, however, is little more arbitrarythan that which the United States Supreme Court approved in the Ju Toy case. We are told in thesedays that the law should be administered upon considerations "of what is expedient for the communityconcerned," and "that views of public policy should control "; and Mr. Justice Holmes, in the Youth'sCompanion, some time ago said: "A system of law at any time is the result of present needs andpresent notions and of what is wise and right on the one hand, and on the other of rules handed downfrom the earliest states of society and embodying needs and notions which more or less have passedaway." The present notions of men as to what is wise and right is not law, and to allow it to subvert theconstitutional guarantees of personal liberty endangers every man's freedom. If the security which theConstitution has afforded to the citizen is unnecessary, and the first eight amendments embody "needsand notions which more or less have passed away," then the people should be allowed to determinethat question and not the courts. Amendment to the Constitution by judicial construction is simplyusurpation, and is especially blameworthy because it is done by those who are the guardians of thepeople's rights.The truth is that for the last fifteen years momentous changes have been going on of which the peopletake little note. During this period the rights of property, through the decisions of the courts, have beengrowing more and more sacred, while the liberties of the citizen, secured to him by constitutionalguarantees, have been gradually impaired. Let us observe an illustration of this change. In January,1891, the Appellate Supreme Court of Massachusetts, in the case of Miller against Horton, 236 Mr.Justice Holmes writing the opinion, held that the decision of the Massachusetts State Commissionerson Contagious Diseases among Domestic Animals to the effect that the plaintiff's horse was affectedby glanders and directing the Board of Health of Rehoboth to kill the horse, would not protect theBoard of Health in so doing if it turned out upon the trial that the horse was not affected by glanders,and that the plaintiff in such a case could recover damages from the members of the board. Now aman's horse, of the value of perhaps a hundred or so dollars, was involved in that decision. A man'sright to live in his own country and the country of his birth was involved in the Ju Toy decision. In theone case the decision of the Commission on Contagious Diseases is held not conclusive. In the othercase the decision of the Secretary of the Treasury is held conclusive, although the referee appointed bythe District Judge, upon oral evidence taken with opportunity for cross-examination, had reported thatJu Toy was a citizen, and his report had been confirmed. Ju Toy has no legal remedy for this wrong.He cannot sue the Secretary of the Treasury, and his action being in tort is not cognizable before theCourt of Claims. 237It was the rights of man which engaged the attention of the political thinkers at the time of theDeclaration of Independence. It is the rights of property which absorb the attention of the courts today. Power when interpreted by the one who is to exercise the power is always construed with greatlatitude. The Immigration Commissioner and the Secretary of the Treasury, according to this decision,exercise exclusive power, and the tendency is to increase that kind of power. Such tribunals generallywill have all the power that they choose to exercise. As expressed in the original Constitution ofMassachusetts, "A frequent recurrence to the principles of the Constitution is one of the thingsabsolutely necessary to preserve the advantages of liberty and to maintain a free government." We look236237

152 Mass., 540.

Goodnow, Comparative Administrative Law, pp. 156-161.

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upon our government as a thing established and capable of maintaining itself without any personalefforts on the part of the citizen. The power to check, held by these commissioners, is often extendedinto a power to decree and to enact. Their exercise of power is purely arbitrary with apparently nolimitation. If the people are not aroused to the danger of the exercise of such power it will not be manyyears before their liberties are subverted.Mail stoppage ordersAnother illustration of the danger of government by the decisions of administrative officers is found inthe provision allowing the stoppage of mail by fraud orders. Now it is undoubtedly true that the mailsare frequently used for improper purposes, that obscene matter is sent through them, that rascals whoshould be in state prisons employ them to carry out their nefarious schemes for defrauding simple,credulous people, and that all the abuses exist which Postmaster-General Cortelyou set forth in a recentreview article. 238 Usurpations of power spring into existence to suppress just such wrongs as exist inthe Post-office Department. Government always finds in the existence of similar abuses to-day excusesfor usurpation. President Adams and Congress, in the passage of the Alien and Sedition laws, wereseeking to correct real abuses. The conduct of the French immigrants, who had taken advantage of ourgratitude to France, was such as to be worthy of punishment. It was the unconstitutional means ofsecuring that punishment which aroused the American people, brought about the defeat of theFederalists, and placed in power the Democratic party for over fifty years. The danger of arbitrarypower is always greater where the purposes for which it is exercised are good purposes, because thegreat majority of men do not see the danger from such exercise if it accomplishes good results. In noother way could arbitrary power take on a form more popular with good men than in attempts tosuppress obscene literature, or letters and pamphlets intended to swindle the unwary. Of course we alldesire that such men should be punished, but if one is acquainted with human history and its lessons hewill never wish even such evils suppressed by the exercise of arbitrary power.In 1836 President Jackson recommended to Congress the propriety of a law to exclude from the mailsanti-slavery literature of an incendiary character. Mr. Calhoun, condemning in the strongest terms suchpublications, insisted that Congress had no such power because it would abridge the liberty of thepress. Daniel Webster acquiesced in this opinion. James Buchanan, at that time Senator fromPennsylvania, supported a bill of this character, on the ground that the power of Congress to carrymails necessarily involved the right to exclude such mails as it saw fit. This bill was voted down. ThePost-office Department now proscribes the use of the mails for the carrying of obscene matter andletters or pamphlets intended to defraud; and also, without any provision of law sustaining its action,debars from the mails pamphlets criticising the acts of the national government.Few Americans have ever given so much time to the reading and studying of political economy andother kindred subjects, upon which the welfare of mankind depends, as the late Edward Atkinson, ofBoston. For thirty years or more before his death he never failed to espouse the cause of what hebelieved to be just, without any hope of reward except the consciousness of having done his duty. Hebelieved that he saw in the imperialistic policy of President McKinley's administration a great dangerto his country, and when Mr. Atkinson was satisfied that his purpose was a good one he was absolutelyfearless in carrying out that purpose. The following is his statement of what occurred: "In the latter partof 1898 I privately printed a pamphlet containing two treatises: first, 'The Cost of a National Crime,'and second, 'The Hell of War and its Penalties.' ... In February, 1899, the President had submitted to238

North American Review, April 19, 1907.

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the dictates of the conspirators against the liberties of the Philippine Islands, and had committed'criminal aggression' upon them. These facts were exposed in a second pamphlet containing a thirdtreatise entitled 'Criminal Aggression By Whom Committed?' ... I then learned on apparentlyauthentic information that the volunteers who had enlisted for the War with Spain and for service withCuba had been sent against their will and against their convictions of right to the Philippine Islands andwere there held in service after their terms of enlistment had expired, which to many of them wasabhorrent. I also learned on apparently good authority that telegraphic messages from their relatives inthis country were'not permitted to reach them. This outrage made me think it suitable to send copies ofmy pamphlets to these volunteers who were held against their will in order that they might know theyhad support in the maintenance of their rights in this country. To that end I addressed a letter to theSecretary of War asking the addresses of the different regiments, inclosing copies of the pamphlets andannouncing my purpose to send them to these troops. I did not discriminate between the volunteers andthe soldiers of the regular army, but should not have sent to the latter lest the soldiers themselvesshould be embarrassed or exposed to hazard by their acceptance. After waiting a sufficient time forreply from Secretary Alger, I mailed eight copies as a test to Admiral George Dewey, ProfessorSchurman, Professor Worcester, General H. G. Otis, General Lawton, General Miller, and J. F. Bass,correspondent of Harper's Weekly. The Secretary of War did not answer my letter, but apparently heand some of his associates were alarmed by my action lest the volunteers held against their will shoulddemand relief from the abhorrent service of slaughtering our allies, and at the instance of thePostmaster-General the Postmaster in San Francisco violated the United States mail and took thesepamphlets from it without authority of law and in violation of the rights of citizens."Now there can be no doubt that there was nothing in the pamphlet which Mr. Atkinson sent to theSecretary of War, and which he afterwards mailed to Admiral Dewey, Professor Schurman, ProfessorWorcester, General Otis, and the others, which could have been injurious to them. But that is not thequestion. He had the legal right, if men have any legal rights left under imperial government, toexpress his opinions and to send them through the mail to any man, and yet these pamphlets weretaken from the mail and destroyed by the order of the Postmaster-General without the slightestauthority in law.Let us now observe the method through which a fraud order is issued by the Post-office Department.Inspectors of the Department are assigned to various sections of the country, with the duty toinvestigate all cases in their districts in which it is alleged that the mails are being used in violation ofthe law. When a discovery is made by these inspectors (and what inspector or police officer ever livedthat could not discover many things that do not exist?), in the language of Mr. Cortelyou: "When thecharacter of the scheme to defraud is such that its continued operation, during this examination andconsideration of the charges, threatens to result in losses to the public, temporary orders are at onceissued to the Postmaster simply to withhold the mail pending the inquiry." 239 So to start with, we havethe mail of one of the patrons of the Post Office, possibly engaged in a large business, where thewithholding of his mail, even for a few days, may result in the practical destruction of his business,having that mail stopped without any hearing and without any chance of explanation. The man whoengages in lynching adopts the theory of killing the suspected person and then trying him afterwards.The Postmaster-General exercises the same power of destroying a man's business, and then giving hima hearing and ascertaining whether he is guilty.

239

North American Review, April 19, 1907, p. 809.

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Now having held up the man's mail, the inspector reports the facts to the Assistant Attorney-Generalfor the Post-office Department and, as Mr. Cortelyou says:"If these facts establish a prima facie case of fraud, the person or concern involved is at once notifiedof the pendency and the nature of the charges brought, and is then afforded an opportunity to appearbefore the Assistant Attorney-General for the Post-office Department, either in person or in writing, orboth, making such answers and statements as it may be desired to have the Department consider indisposing of the matter." Now the victim of such action may be two or three thousand miles distantfrom Washington. He is given an opportunity to be heard by the Assistant Attorney-General, who hasalready passed upon the case. The examination is not one through witnesses, with examination andcross-examination, but is in fact a mere formal examination, and the decision of the AssistantAttorney-General confirmed by the Postmaster-General is absolute, as in the Ju Toy case, upon therights of the accused.The right to do business is a legal right. Upon this right is founded most of the injunctions against laborunions and laborers engaged in a strike. Their employers are carrying on the business of manufacturingor some other commendable enterprise. Their men strike, they attempt, possibly by forcible means, toprevent other laboring men from taking their places, and the employer applies to the court for aninjunction, which is granted, because the right to do business is a property right, and the action of hislate employees is destructive of that right. Now apply this law to the case of a man whose mail isstopped by a fraud order. Such an order practically destroys his business even before a hearing. It willavail him little to go before the Assistant Attorney-General, because upon the evidence of the detectivehe has already decided the case, and at least before the hearing could be had the man's business isdestroyed.In 1905 a man by the name of E. G. Lewis was carrying on in the city of St. Louis a business known asthe People's United States Bank. A fraud order was issued against him, and proceedings were taken inthe United States Court for the purpose of appointing a receiver of his corporation, and a receiver wasappointed. The fraud order was issued against both the corporation and Lewis. All letters thereafteraddressed to him personally were returned with the usual word "fraudulent " stamped thereon. A letterfrom his wife, from his attorney, from any close friend in any part of the world, would have beenreturned with the word "fraudulent" stamped upon the outside. This fraud order actually shut him offfrom any intercourse through the mails with any human being and apparently for all time.Mr. Cortelyou says about such cases: 240 "It is particularly true, too, that comparatively little directevidence can be brought into court against the majority of these fraudulent operators," and he tells usthat it is very difficult to find evidence which will insure the conviction of such operators. We are alsoassured by him that there is much justification for the remark recently made that "the Post-officeDepartment of the United States is the most effective agency in the world for the detection andprevention of crime and the apprehension of the criminal." 241 Now what have we? The most effectiveagency in the world for the detection of crime is unable to obtain little evidence against those itaccuses, and yet it has issued since the enactment of the present legislation 2,400 fraud orders. I amcredibly informed that in the case of Mr. Lewis and his People's United States Bank, upon liquidationby the receiver, it paid one hundred cents on the dollar with interest in full to creditors, together withdividends to the stockholders of eighty-five per cent.240241

North American Review, April 19, 1907, p. 812.

North American Review, April 19, 1907, p. 816.

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In the second session of the Fifty-ninth Congress a bill was introduced into the House ofRepresentatives providing that the mail addressed to the person or firm against whom the fraud order isissued, instead of being stamped "fraudulent" and being returned at once to the senders, should be heldin the Post Office for fifteen days before being sent back. In that period the business concern waspermitted to institute an action in the United States Circuit Court, on giving a bond to pay the entirecosts of the action in case the fraud order was finally held to be valid. This bill passed the Housewithout a division, but failed to pass the Senate. When the wisdom of the proposed act was beingdiscussed before the Congressional Postal Commission, one of the speakers said:"We are expected to live up to rulings, regulations, and decisions that we are unable to find and neverheard of. The publisher is informed by mail that he has violated some rule, that his publications can beno longer mailed at a second-class rate, but the rule is new to him. His paper is held up until he canfind out what is the matter. . . . And when he has his hearing he finds out that it is a purely arbitraryaffair, surrounded by none of the safeguards which are allowed other American citizens who arecontesting for their right to do business." Of course it is not surrounded by any of the safeguardsallowed other American citizens, because their safeguards are secured to them by laws and by a regularjudicial procedure. On the other hand, administrative tribunals, at least in our own country, havealways been arbitrary tribunals depriving the citizen of his property and his good name without any ofthe safeguards prescribed by law.In another case, where the publication had been stopped because of alleged obscene matter, anacquaintance of the publisher sought by repeated letters to discover what the precise matter in thepublication was which the Post-office Department regarded as objectionable. Finally the onlystatement which he could procure from the officials was that it was "not practicable for the departmentto attempt to point out the offensive passages," and they practically refused to give any information asto what matter contained in the publications suppressed was regarded by them as offensive. Incommon-law courts the law requires the facts constituting the crime to be specifically stated in theindictment so that the accused may know exactly the offense with which he is charged. He is given theprocesses of the court to procure his witnesses, and must be confronted with the witnesses against him.How different is all this from administrative tribunals.Our censors compared with those in EuropeThis proceeding on the part of the Postmaster-General is quite as arbitrary as any which we find inRussia, Prussia, or Austria. The Russian censor blots out the objectionable parts of the newspapers andpermits the rest to go through the mails. But our censor suppresses the whole edition, the good alongwith the bad. In Austria the business of printing a newspaper cannot be carried on without a licensefrom the government, and every number of the periodical must be submitted to the police beforepublication, so it may be confiscated if it contains anything contrary to law. The censor is saidfrequently to order portions of the columns of an article to be stricken out, and with these corrections itis allowed to go forth. All arbitrary governments seek to control the press. And with full knowledge ofthe results of such methods we are deliberately adopting them. As a general rule no man's liberty toprint or publish ought to be restrained by government for any reason short of thereby protecting theliberty of other men. So important is the public discussion of questions that all assaults of arbitrarygovernment upon liberty have first appeared in limitations upon the press.Publications entered as second-class mail matter are said to be subject to no less than seven distinctrates. Such discretion reposed in the officials of the Post Office is wide enough to allow them toFederal UsurpationElectronically published by Family Guardian Fellowship

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suppress all periodicals which are found to be injurious to the interests that they cherish. Wilshire'sMagazine was a few years ago excluded from the mail by the Post-office Department. The editor thentook his magazine to Canada, where he had no difficulty in securing its entrance to the post office.Three years later a New York printer sought to contract for the publication of this magazine, and toprocure its reinstatement in the mails of this country applied to Senator Platt, and the boss easilysucceeded in securing at once what years of labor on the part of Wilshire had failed to accomplish.This instance shows the danger of conferring such arbitrary powers upon a department of thegovernment. The Star Chamber, which was abolished in 1641, had as one of its special functions theright to try the offenses of the press. "Press law has long constituted," says Mr. Dicey, "and stillcontinues to a certain extent a special department of French legislation, and press offenses have been,under every form of government which has existed in France, a more or less special class ofcrimes." 242 Under Napoleon Bonaparte no one could print a paper without official authorization, andeven to-day the government adopts preventive measures for guarding against the propagation ofunsound or dangerous sentiments.Yet even in France the arbitrary power exercised by our Post-office Department would not be toleratedfor a moment. The Gaulois, a Parisian paper, speaking of President Roosevelt's action in excludingfrom the mails newspapers printing the details of the Thaw trial, said:"That no sovereign in Europe unless it be the Czar and the Sultan had the power to do what theAmerican executive had done." The Gil Bias, another paper, commented upon the same matter, saying:"Imagine President Fallieres interdicting and expurgating such an account." If publishers must run thegantlet of such secret and irresponsible postal supervision the freedom of the citizen would seem to begreatly impaired. In England, from whence we drew our principles of English liberty and wherehappily they still continue, the government has no authority to seize the stock of a publisher because itconsists of books, pamphlets, and papers which in the opinion of the government contain seditious ordangerous matter.Recent instances of usurpation in Administrative LawThere are many other instances of abuse of administrative law. One of these is found in the McKinleyAct of 1890. Discriminations were being made in Germany against American meats. The act providedthat sugar, tea, coffee, molasses, hides, and other articles should be admitted free of duty. In order toarm the government with means of retaliation, Congress conferred the power upon the President thatwhenever he should be satisfied that unjust discriminations were being made by any foreign stateagainst the importation or sale of any American product, he might by proclamation impose duties uponsugar, tea, coffee, molasses, hides, or any other articles which, by the terms of the McKinley Bill, wereadmitted free from the country discriminating against us. Thus the President was given a legislativepower belonging to the popular branch of the legislature, originally granted for the protection of thepeople against arbitrary power. The United States Supreme Court, however, held that this provision ofthe act imposed administrative powers upon the President and was constitutional, Justices Lamar andFuller dissenting. Justice Lamar said:"It goes further than that and deputes to the President the powerto suspend another section in the same act whenever 'he may deem the action of any foreign nationproducing and exporting the articles named in that section to be reciprocally unequal and

242

Dicey, The Law of the Constitution, p. 248.

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unreasonable'; and it further deputes to him the power to continue that suspension and to imposerevenue duties on the articles named 'for such time as he may deem just.'" 243On March 9, 1897, Congress created a commission to regulate the importation of teas, and prohibitthem, though in fact pure, when below the standard of quality fixed by the Secretary of the Treasury.That tea commission is now engaged in the exercise of that dangerous power of requiring thereshipment of teas which do not reach the quality which it prescribes, or, in case they are notreshipped, of destroying them. This act also has been declared constitutional. 244There is no such thing as reviewing the action of these administrative boards according to the decisionjust cited. A recent writer on administrative law observes that our procedure affords even lessprotection from the arbitrary action of these boards than the French law, though the Bill of Rights isunknown to the French Constitution. 245 According to the statement of this same writer state courtshave admitted the finality of the decisions of boards of health in respect to nuisances, so that without ahearing a board of health, in many of the states, has been declared capable of determining that a man'sproperty is a nuisance and binding him by their decision. A different rule, however, prevails in the stateof New York. 246 In hundreds and even thousands of cases, where these boards are acting within thescope of the statute creating them upon the subject matter therein fully described, their decisions arefinal and are not subject to review in the courts.247 Mr. Wyman, who is enthusiastically favorable tothese commissions, says, however: "Things are done in administrative adjudication which could neverbe done in judicial processes. Principles are violated in administrative processes which arefundamental in the courts." 248Ex parte proceedings seem to be just as binding as proceedings upon notice. Even these boards haveextensive legislative power. So when a fish and game commission determine that the fish of any brookor stream of the commonwealth are of sufficient value to warrant the prohibition of casting sawdustinto the stream where they are found, they may by an order in writing prohibit the same without givingthe owner any hearing upon their action. 249 Although the executive, legislative, and judicialdepartments are carefully divided in our form of government, still the legislative department can conferexecutive duties upon these commissions and their decisions therein are final. 250 Judge Jackson, manyyears ago in the Kentucky and Indiana Bridge case, described these commissions as the referee of eachand every Circuit Court of the United States. 251 And it has been held that one of them may instituteproceedings in the courts and become prosecutor and judge in the same case.Congress voted, in 1898, the payment over to the President of $50,000,000, and under the power ofadministrative law he expended it in his own discretion without any check whatever. Under this powerof administration in 1899, the Secretary of War sent troops into the state of Idaho, without even thepetition of the state authorities; martial law was declared by the War Department, the writ of habeas243

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corpus was suspended, not by the state authorities but by the general in command of the army, andwithout any warrant whatever he arrested hundreds of men and carried on government by his own will.Mr. Root, at a New York University Law School Banquet, described administrative law under hisdirection, as Secretary of War, as follows:"It has been my province during the last four years and a half to deal with arbitrary government. It hasbeen necessary for me not only to make laws and pronounce judgment without any occasion fordiscussion except in as far as I would choose to weigh the questions involved in my own mind affecting ten million people. And not only to make laws and pronounce judgment, but to executejudgment with overwhelming force and great swiftness." Under this administrative law the PhilippineCommission on June 1, 1903, by Section 6 of an act numbered 781 of the Philippine Commission,provided for the very same kind of reconcentration of the native population for which we drove Weylerand his Spaniards out of Cuba. 252Under administrative law the Secretary of the Interior, by executive order in 1904, decreed that allpersons who had served in the army or navy of the United States and had reached the age of sixty-twoyears, should be presumed to have incurred such disabilities as to entitle them to receive pensionsunder the Act of Congress approved June 27, 1890. It is under this power that the Interstate CommerceCommission is about to impose rates of traffic upon 200,000 miles of railway in the United States. It isunder this administrative power that Secretary Shaw of the Treasury suspended the duties uponimportations of coal; accepted, as believed by many, without legal authority, other securities thannational bonds to secure the issues of national bank notes; deposited the surplus of the Treasury withnational banks in the amount of many millions of dollars, and used all the powers at his disposal toprotect and further the interests of these national banks. It is under this administrative power that in allthe states of the Union hundreds of commissions are taking the control by license and otherwise of theaffairs of men, many of which are not public in their nature.Judge Gaynor on danger of commissionsIn the case of the People ex rel Lodes against the Department of Health of New York City, Mr. JusticeGaynor, of the Supreme Court of New York, speaking of this condition, says: 253 "Those who meditatea recourse to arbitrary power for a good purpose should pause to consider the consequences, for it is avice which brings in its train all the vices and especially the detestable vices of official extortion andblackmail. Good men in good times should beware of setting bad precedents for bad men in bad times.The sale of impure milk or other food is bad, but far worse, and fraught with far greater evils, would bethe growing exercise by executive officials of powers not conferred on them by law. If they weresuffered to require licenses for the ordinary occupations of life, and refuse them to whom they willed,how long would it be before such licenses would be sold for money or for political favor or partisanfidelity? " Commissions of this kind, censors of all kinds, restrictive government, multiplication ofpenal laws, all these methods have been the methods of arbitrary governments. There is not a step inthe decay of the Roman Republic and of the Empire which is not marked by a large amount of justsuch legislation as I have been describing. The endless repetition of legal commands is the unerringsign of impotence and decadence.

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Administrative courts in Continental Europe

It is important to appreciate whither this administrative government is leading. It differs materiallyfrom administrative government in France and other European countries. In all these countries allrelations between administrative officers and the citizens, growing out of the official duties of thoseofficers, are regulated entirely in administrative courts. The citizen of France is forbade from thebringing of any action against any administrative officer for an official act without the consent of theFrench Council of State. This does not apply to acts committed by officials not in the exercise of theirauthority, as, for instance, where the act is a personal fault or a malicious use of lawful powers. But forall other administrative acts of any name or nature the citizen has no recourse against the officialcommitting the wrongful act under claim of authority, except in an administrative court, where there isscarcely hope of redress. 254 These administrative courts are conducted by administrative officials withrules of procedure peculiar to themselves, and with no provision of trial by jury. Will administrativelaw bring us to the same unfortunate condition?In Prussia the only remedy of the citizen against an official for a wrong, in the supposed execution ofhis duty, is to appeal to the authority who supervises the action of that official, or to bring an actionbefore the administrative courts against the official or officials whose conduct is challenged. 255 Byreason of this fact a considerable part of all the litigation in Continental Europe is carried on beforeadministrative courts dependent upon the head of the state, 256 and therefore likely to be safe guardiansof the rights of officials. The administrative courts in European countries resent with indignation anyatempt on the part of the regular law courts to interfere with their jurisdiction over administrativeofficials.There are no strictly technical administrative courts in this country or in England. The public official isliable before our common-law courts for all his torts and wrongs, even though claiming to haveperformed them in his official capacity. If a board of health wrongfully has declared the property of acitizen to be a nuisance and destroyed it, they are liable in most of the states, at least for damages, incase it was not a nuisance. If they revoke the license of a milk dealer, without a hearing, and for acause not prescribed by the laws or their written regulations, they are liable, and an equity court willenjoin their action. 257 It may be true that in some cases the official can protect himself by a processwhich is regular upon its face, but in such a case his superior who issues the process, if void, is liable.Whither our President is leading usThese commissioners will come, by and by, to believe that extraordinary powers belong to them; thatthey can prohibit a legitimate business by refusing to license it, entirely overlooking the fact that theyare given the power to regulate business and not to prohibit it. The President, a few days ago, tookaway the license of a Mississippi steamboat pilot. It will not be many years, if existing conditionsprevail, before the national government, through commissions, will be licensing every locomotiveengineer and conductor engaged in interstate commerce, and will be licensing every state corporationdoing an interstate business. These licenses will be revocable at the will of the President or the head ofthe Department of Commerce, and hundreds of thousands, if not millions, of men, and all of thecorporate interests of the country, will be at the mercy of the national government. So long as these254

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commissions are allowed to exercise judicial and legislative powers, without the right of review on thepart of the regular courts, the citizen's rights are in danger. There is to-day no menace to his rights sogreat as administrative decisions. Our English ancestors three centuries ago escaped from theadministrative courts of England. Let us beware of the danger of returning in our day to that kind ofarbitrary government.

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XI HOW TO RESTORE THE DEMOCRATIC REPUBLIC

"To bid the political machines to do away with corruption in order to save the government is to bidthem give up that which to them makes government worth saving."ANON."No system of government . . . can ever pretend to accomplish its legitimate end apart from thepersonal character of the people, or to supersede the necessity of individual virtue and vigor."GROTE."The durability of liberty owes its greatest security to the constant suspicion of the people."HALLAM."Nothing, indeed, will appear more certain, on any tolerable consideration of this matter, than thatevery sort of government ought to have its administration correspondent to its legislature."BURKE."The most far-seeing statesman will not so trust his own misgivings as to refuse to hope for theregeneration of the institutions into which he is born. He will determine that justice shall be done. . . .Constitutions are never overthrown till they have pronounced sentence upon themselves."FROUDE.

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CHAPTER XI HOW TO RESTORE THE DEMOCRATIC REPUBLIC

The characteristics of our people endanger their libertiesNo people in history ever relied so implicitly upon the making of laws, the creation of constitutions,and the protection of life and property through courts as the American people. Our people are reallybeside themselves in their belief in the efficiency of law for the correction of evils. Congress yearlypasses three or four thousand statutes, and the state legislatures add about twenty-five thousand pagesmore. We permit the political bosses to select for our suffrages members of assembly, senators, andjudges; then we make our choice between their candidates, go home from the polls and get so busy inour own affairs that no one is left to watch the men elected. It is a fundamental error, in our thinking,that evils admit of immediate and radical remedies through legislation. "If you would but do this or dothat," we say, "the mischief will be prevented." No set of laws, however good, will bring goodgovernment unless honestly and intelligently administered, nor unless those responsible for suchadministration are held strictly accountable at all times for public abuses. The sore spot in ourgovernment is right here, do the people really wish good government? Is there sufficient public virtueamong our citizens to demand and appreciate good government? If the legislature passes a bad law youcan repeal it, if the Constitution is defective you can amend it, but if the "people themselves are lackingin public spirit there is no remedy."There is no such thing as remedying existing abuses, or amending our Constitution so as to bring it intoharmony with our times and requirements, unless the people really believe that conditions aredangerous. The only way to keep government free is for each individual to presume that government isin the wrong, and that presumption will keep it upon its good behavior. We must become disgustedwith the present conditions and desirous for something better before a great change will take place. Wehave been fed so long on comparisons of our own exalted condition with that of the oppressions ofEuropean people, we have been educated to such reverence for our Constitution, that we have arrived.at that condition of sanguine optimism where the worst phases of our life are believed by many peopleto be the evidence of our superiority. When a people settle down in serene confidence that law andsocial justice, the preservation of the state, and all such matters have been provided for them for alltime through a constitution, and that all they have to do is to ride in the constitutional ship and devotetheir entire attention to private business, they need to be shocked into the consciousness that theirliberties are in danger, and that their very optimism is a temptation to politicians to abuse theirconfidence.The political partisan is never a critic. He and his associates are ever engaged in covering the sores oftheir party. What the people need is a large body of fearless men who ask no favors of government,and who are willing to stand up and ask disagreeable questions, and utter uncomfortable truths, and laytheir fingers upon abuses, and attack the men behind those abuses. A people may prefer freegovernment and still be unequal to the exertions necessary to preserve it. Down deep in the nature ofthe American man is the quality of always trying to avoid trouble and save time. If an American and anEnglishman are traveling together in Europe, and a cabman or guide or hotel keeper attempts to extortmoney from them, the Englishman will say, "I will not pay it; I will fight it out with him." But theAmerican will counsel, "If we try to fight it out with him it will keep us here a week, and we cannotafford that; let us pay him." The one method destroys abuses at whatever cost when they first appear,the other permits evils to grow and grow until they become a part of the very life of government, andmust be cut out at last, if at all, from the roots.Federal UsurpationElectronically published by Family Guardian Fellowship

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Goldwin Smith tells us 258 that as the body of William the Conqueror was being lowered into thegrave, Ascelin Fitzarthur, a private citizen, stood forth and forbade the burial, saying that the groundwas his, and that he had been wrongfully deprived of it. He was promised the full value of his land andallowed the burial to go on. Here we have that spirit of resistance against the infringement of one'srights which has preserved the right of property and liberty among men. There is no such thing as anindividual securing his rights unless he is willing to insist upon them at all times; and there is no suchthing as a people securing their rights unless they are ready to fight for them at all times. When youcan slap a man in the face and he shows no spark of resentment, you can safely shelve that man as anunfit citizen; and when a man can see a cruel injustice done in a law court or in society and not cry outagainst it, he is always an unfit citizen. "A wise man," said George Eliot, "more than two thousandyears ago, when asked what would most tend to lessen injustice, said that every bystander should feelas indignant at a wrong as if he himself were the sufferer."Materialism the foe of libertyThe all-pervasive cause of present conditions is found in our maddening struggle for wealth and thecommercial spirit of our countrymen. In 1883 Andrew D. White, in his noble address, The Message ofthe Nineteenth Century to the Twentieth, delivered at the reunion of his class at New Haven, put hisfinger upon this danger and advised the development of other great elements of civilization to hold thecommercial spirit in check, saying: "The greatest work which the coming century has to do in thiscountry, is to build up an aristocracy of thought and feeling which shall hold its own against thearistocracy of mercantilism. I would have more and more the appeal made to every young man whofeels within him the ability to do good or great things in any of these higher fields, to devote hispowers to them as a sacred duty, no matter how strongly the mercantile or business spirit may drawhim. I would have the idea preached early and late. . . ." The evils of commercialism, comparativelyslight when Mr. White said these words, have been increasing with maddening speed ever since.Failure to make a fortune is the unpardonable sin of our country. Wealth makes the man; no person isaccounted either great or honored without it.History presents no country where the people gave themselves up to such commercialism thatpreserved its liberties for any considerable period of time. The reason for this is that when any suchconsuming passion takes possession of a people, it absorbs all other powers and grows by what it feedsupon, until it eats out the humanizing virtues and liberty-loving virtues of men. Art, literature, culture,religion, each feels its pressure and finally succumbs to its dominating spirit. The materialistic spirit ofour day is atrophying the minds, the consciences, and the imaginations of men. The spirit of poetry, thebeauties of mythology, and the delights of art are all sent to the rear by this triumphant force. We haveto go back fifty years in our history to reach the time when the great body of our citizens admiredpoets, orators, philosophers, novelists, and historians. Clay, Webster, or Calhoun, in the United StatesSenate, were the delight of the people. Emerson, Bryant, Lowell, Holmes, Whittier, had their hundredsof thousands of admirers. Then the millionaire appeared upon the scene, scattering his money forcharity, purchasing newspapers, furnishing campaign funds, buying legislators, making all political lifea business, and all was changed.Xerxes, after the battle of Thermopylae, while moving his troops to the south, was assured byMardonius, the Greek, that the Peloponnesians, even at that moment, were occupied with thecelebration of the Olympic games.258

The United Kingdom, vol. i, p. 41.

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"What prize does the victor receive? " he asked. Upon the reply that the prize was nothing more than awreath of the wild olive, a kinsman of Xerxes, in his presence, is said to have exclaimed, "Heavens!Mardonius, what manner of men are these against whom thou hast brought us to fight! Men whocontend not for money but for honor! " To-day men do not contend for honor, because if they attainhonor without wealth they are of little account. The steel king, the oil king, the railway king, the cattleking, the mining king, attract and absorb the attention of the people. The newspaper columns are filledwith their doings because we reverence wealth, and hence reverence the men who have it.If we wish to check the power of organized and unscrupulous wealth over government, one way willbe to change our own personal standards of right and wrong, and our social customs, and through thoseto affect public opinion. This idea was admirably stated by John Sharp Williams in the House ofRepresentatives in 1905, when he said: "Public opinion in administrative and financial circles is aman's environment: and the trouble is with public opinion itself. The trouble is with the Americanpeople. Down deep at the bottom of our hearts, God help us, nearly all of us somewhat respect andenvy the fellow who has 'financed' five hundred thousand dollars. We are like Thackeray's snob wasabout the nobility when he exclaimed, 'I dearly love a lord.' ... if every Member of this House to-nightshould receive an invitation to dine with McCurdy or with McCall, nine tenths of you would cynicallysay, 'Is the wine good? Does he roast his ducks well?' And you would go, the most of you." We railagainst the predatory trusts, but we envy the wealth of the men who are in the predatory trusts. We dealwith them, flatter them, and refuse to treat their crimes as we treat those of the poor. Because we havemade money our god we do not look forward to having our sons attain fame for learning or eloquence,but we all hope to see them secure wealth. "No home," says Mr. Lloyd in his Wealth AgainstCommonwealth, "is so low that it may not hope that out of its fledglings one may grow the hookedclaw that will make him a millionaire."So thoroughly has commercialism taken possession of our people that we do not appreciate the serviceof those who labor for the public weal with no expectation of receiving benefits therefrom. Theordinary legislative committee is a representative of public opinion, and the members of it will alwayslisten with more attention to a man of business, no matter how disreputable, than it will to a citizenwho is seeking in no manner to further his own interests. We worship business and business success,and our whole theory of legislation is to give some man or some body of men, policemen, firemen,labor-union organizations, trusts, railroads, some advantage through laws. Our legislators care littleabout the great body of the people, because they are unorganized. They care little about the words ofthe man who represents unorganized public opinion. Legislation is directed to the security of privateproperty and not to the protection of personal rights and liberties. The attorney who represents a greattrust or corporation is looked upon by a legislative committee as a great man, while the man who isgiving his whole life to the study of history and of political problems and policies, if he represents notrust or organized party, is considered of little account.Instances of public virtue and its immortalityWe wonder why our age does not produce such statesmen and orators as we had sixty or seventy yearsago. It would produce them if they were appreciated. In the age of Pericles, when all Athenianstatesmen met in public assembly and decided public affairs, great men came to the front. Pericles, inhis famous funeral oration over the three hundred who died at Thermopylae, according to Thucydides,gave the reason for this. He said: "We call the man who cares not for the public weal a worthlessnuisance, not merely an inoffensive citizen . . . for all citizens take a share of the public burdens andFederal UsurpationElectronically published by Family Guardian Fellowship

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are free to urge their opinions on public affairs." An age of liberty is always an age of appreciation ofhigh public service, and of scrupulous conduct on the part of public men.After the Revolutionary War Washington turned his attention to improving the intercourse between thedifferent parts of the State of Virginia, and especially between Virginia, Maryland, and the West. "In1785," says John Fiske, "he became the President of a company for extending the navigation of thePotomac and James Rivers, and the legislature of Virginia passed an act vesting him with one hundredand fifty shares in the stock of the company, in order to testify to their 'sense of his unexampledmerits,' but Washington refused the testimonial, and declined to take any pay for his services, becausehe wished to arouse the people to the political importance of the undertaking, and he felt that his wordswould have more weight if he were known to have no selfish interest in it." What a noble example forsome of our public men to-day who do nothing unless there is something in it for them. Aristides,when made general receiver of Greece to collect the tribute which each state was to furnish against thebarbarians, "was poor," says Plutarch, "when he set about it; poorer still when he had finished it."Henry Watterson, in The Compromises of Life, says: "Diogenes, seeking an honest man, might, in thehistory of the Irish Union, come upon a parallel case in poor old Hussey Bergh, who refused all thegold that England could offer him, abandoned the borough of Kilmainham, for which he sat, and whichthe British Ministry guaranteed him for life, voted against the bill which robbed his country of itsfreedom, and was found dead in his bed, with sixpence on the mantel, and a paper on which wasscrawled: 'Ireland forever, and be damned to Kilmainham.'"Is not such virtue better entitled to the homage of men an hundred times over than the accumulations ofthe millionaire? There is no immortality of glory connected with millionaire fortunes. Soon, very soon,all the achievements of these men will be forgotten. The Roman Empire in its glory possessed manymen with fortunes nearly as great as those of to-day. The historian of those days describes theirchariots, drawn rapidly through the streets of Rome, tearing up the pavements as they went. Probablynot one man in a million can mention the name of one of those great millionaires of ancient Rome. Itwill be just so with our multi-millionaires two thousand years from now, while the memory ofAbraham Lincoln, who died poor but wrought so wonderfully for his fellow-men, will still exist,tradition adding to his merits, his glory exempt from mutability and decay, and as immortal as the loveof liberty.We must destroy bosses and monopoliesIt was the rights of man which engaged the attention of political thinkers and of the people at the timeof the Declaration of Independence. The people at that time had had so much misery, because of theexactions of the ruling classes, that they were suspicious of power and government. The politician ofto-day knows men, and he knows how to turn their weaknesses to account. He seeks out their littlegrievances and relieves them, and at the same time he nominates legislators and governors and judgeswho will carry out the policies of the men who furnish campaign disbursements, and thus put greatgrievances upon the people. The patriotism which will accomplish results to-day must come fromcareful study of our institutions, and must be enthusiastic for greater liberty for the masses of mankind.If mankind is to belong to itself, and not to arbitrary power, it must destroy the power of the boss. Ifthe people of this country are to return to their own again we must cease to tolerate the shams whichhave always taken so great a hold on the American people. We must do away with the politicalimposture and quackery which, along with new and strange religions, have thriven in our country.

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The destruction of public virtue results more from the oppressive conditions of life than from any othercause. In other countries men are accustomed to retire in middle life, and opportunity is thus giventhem with leisure to study conditions of government and public affairs. The tendency in our owncountry is to draw numbers of young men from the country to the city. There the cost of living is sogreat, and the opportunity for advancement so slight, that all the energies of their life are absorbed inthe mere making of a living, and they naturally become bad citizens. So long as the trusts through highprices can absorb the wages of labor and keep men working until the end of life to support themselvesand their families, they can manage government as they have in the past. Men must satisfy theirphysical wants before they will be able to think much about their political rights. The governmentwhich allows combinations of corporations to make the cost of living so dear that men must strain theirenergies to the limit to care for themselves and their families, has no chance of improvement. Freegovernment cannot be reestablished in this country unless monopolies, special privileges, sumptuarylaws, and restraints upon trade are abolished. Industrial freedom must come before political freedomcan come.Nor will conditions improve so long as that pernicious fallacy still continues to possess men's minds,that when they elect public officers the task of solving public questions is upon those public officers.Our President, our Governor, our Congressmen, our assemblymen, will never solve public questionscorrectly unless there is behind them a vigorous public sentiment demanding that a certain line ofaction shall be taken. The citizen who attempts to avoid his responsibility by saying that he has donehis duty by electing a good man to office, little knows what forces are constantly attempting toinfluence the action of their public servants. These self-constituted politicians talk much about the dearpublic, but the thing they fear above all others is a real expression of public opinion. To keep thepeople quiet, to divert their attention from the sinister forces behind government, to hide their ownaction behind the doors of legislative committees, is the high art of the latter-day politician. If thepeople only knew the true conditions and appreciated to what ends they are leading, we almost wouldhave a revolution.The solution of public questions and the removal of evils rests directly upon the peopleThe whole question of restoring democratic government is found in the single problem of how thepeople can control public men for the public benefit, instead of allowing them to be controlled bycombinations for the benefit of those combinations. President Cleveland, in his inaugural address, putthe whole problem in two or three sentences as follows: "Your every voter as surely as your chiefmagistrate, under the same high sanction, though in a different sphere, exercises a public trust. Nor isthis all. Every citizen owes to the country a vigilant watch and close scrutiny of its public servants, anda fair and reasonable estimate of their fidelity and usefulness. Thus is the people's will impressed uponthe whole framework of our civil polity municipal, state, and federal; and this is the price of ourliberty, and the inspiration of our faith in the republic." The citizen who keeps aloof from public affairsshould receive the condemnation of everyone. To interest men in the discussion of public affairs, andto make that discussion widespread and earnest, is the only efficient means of restoring democraticgovernment. No amendments to the frame of our government, and no laws which legislatures maypass, will avail anything in bringing about a real reform in the condition of our country, unless achange takes place in the performance of our duties as citizens, unless we all come to believe that atrust rests upon each of us individually, and unless the maddening passion of our commercial life issoon abated.

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The first legal change should be an easier method of amending our ConstitutionI will now try to indicate one by one some changes in laws and in our Constitution which will aid aneffort for better government. The first step which the people of the United States should take is to call aconvention through their legislatures in two thirds of the states for proposing amendments to theConstitution of the United States. This Constitution is the most undemocratic instrument to be found inany country in the world to-day. The conditions of its amendment are so difficult as to makeamendment impossible unless the people are stirred to their depths over existing conditions. Theconstitutions of the states have been amended many times to meet the conditions of modern life. TheConstitution of the United States, after the first ten amendments at the time of its adoption, wasamended twice, and for over sixty years thereafter no amendment thereto was made. The usurpationsin government to-day are largely the result of the rigid provisions of the Constitution and the greatdifficulty of its amendment. The President strenuously insists that additional powers should beexercised by the national government, and his Secretary of State says that, unless the states do as theyought to do, methods of construction will be found reposing- those additional powers in the nationalgovernment. "A recent distinguished member," says Mr. Paul Fuller "of the department of justice, whohas come to practice his profession in New York City, told a body of assembled merchants some timeago that the Supreme Court was a perpetual convention for the amendment of the Constitution. 259For sixty years Congress, with its committees behind closed doors, each member of which is seeking toget as many pension bills and private bills affecting his district passed as possible, has beenappropriating hundreds of millions of dollars of the people's money, for which there was not theslightest authority in the Constitution. Is it not about time that the people put a stop to these things?The way to do it is to remove all doubt about the provisions of the Constitution by embodying the willof the people to-day in an amended Constitution. This cannot be done by a single amendment. Theonly way to stop usurpation is to remodel the whole Constitution, and that can never be accomplisheduntil the right to amend it is less difficult to attain. Let the people arouse themselves to one supremeeffort and change the method of amendment so that the legislatures of one third of the states canpropose amendments, and a majority of the voters in a majority of the states can approve amendments.260

The whole scheme of the American Constitution," says Mr. Bryce, "tends to put stability aboveactivity, and to sacrifice the productive energies of the bodies it creates to their power of resistingchanges in the general fabric of the government." 261 The object of a constitution in a democratic formof government should be to allow the opinion of a majority of the electors to act as freely and directlyas possible upon public questions. Our Constitution checks and defeats popular control, and makes trueparty government impossible. The result is that a very few men control the parties to-day, and theycontrol them largely for the private interests who furnish the money for political campaigns.Real party government impossible at presentWashington desired to make his administration represent the whole people, and conceived the idea thatin order to do this he must have in his cabinet the representatives of both parties. So he selectedJefferson, the leader of the Anti-Federalists, as Secretary of State, and Hamilton, leader of the259

Bradford, Lessons of Popular Government, vol. i, p. 324.

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Federalists, as Secretary of the Treasury. He found it impossible to carry on government with menwhose views were so radically different. William III, of England, selected his first Ministry from bothof the political parties, and the result was that he got into trouble with both. But between 1693 and1696 he dismissed the Tories and confided the affairs of the state to the Whigs, who had a majority inthe House of Commons. From that time the ministry has been selected from whatever party had amajority in the House of Commons, and that ruling party has been held responsible by the people forits measures. The leaders of the party in power have been in the habit of formulating the measures ofgovernment to be presented to the House of Commons for their approval, and they have had to take theresponsibility for the wisdom of those measures.Those measures have been discussed fully in the open House, and the result has been the passage ofcomparatively few laws each year, those laws being of a general nature affecting the interests of thewhole body of the people.With us the House of Representatives may be Democratic while the Senate and the President may beRepublican. This condition has existed for a considerable proportion of the time since the Civil War.Under such conditions neither party is responsible for legislation. Out of such conditions has grown upthe extension of the committee system; and literally hundreds of thousands of private bills, and billsconferring special privileges, have been gotten secretly through the committees and then "jammed," inthe last days of the session, through the House. Billions of dollars of the people's money have beenappropriated for purposes unknown to the Constitution, or, if justified by the Constitution, for purposeswithout the slightest merit.House of Representatives should be supreme in lawmakingThese conditions might be remedied by making a majority in the House of Representatives supreme inthe matter of lawmaking, and giving to the Senate only a suspensive veto, subject to the secondpassage of a rejected measure through the House. The Committee on Appropriations and the Ways andMeans Committee should be merged into one large committee, and given the control of both theamount of revenue raised and the amount appropriated. It should be provided by Congressional act, orby amendment to the Constitution, if necessary, that the head of each of the great departments of thegovernment should occupy a seat on the floor of the House of Representatives, and that they should bepresent at least one day in each week, on the opening of the sittings of the House, to give informationas to the needs of their departments, and to answer the questions of members of the House.The heads of departments should be supreme in lawmakingIn the year 1881 a select committee of the United States Senate was appointed to consider a bill toprovide that the principal officer of each executive department might occupy a seat on the floor of theSenate and House of Representatives. The committee consisted of George H. Pendleton, William B.Allison, Daniel W. Voorhees, James G. Blaine, M. C. Butler, John J. Ingalls, 0. H. Platt, and J. T.Parley. The report of that committee, which was unanimous, included the proposed bill providing forthis change. 262 Under our present Constitution the departments of the government are entirely distinct262

Senate Bill, 227 (1881). "That the Secretary of State, the Secretary of the Treasury, the Secretary of War, the Secretaryof the Navy, the Secretary of the Interior, the Attorney-General, and the Postmaster-General shall be entitled to occupyseats on the floor of the Senate and House of Representatives, with the right to participate in debate on matters relating tothe business of their respective departments, under such rules as may be prescribed by the Senate and House respectively.

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from the legislative body, and yet the needs of legislation are best known by the heads of departments.The ministers of parliamentary governments to-day are the heads of departments, and are required notonly to be present in the popular branch of the legislature, but they are selected from the members ofthat branch. The separation of the House of Representatives and the Senate from the heads ofdepartments, each working independently for a common end, is entirely out of keeping with modernparliamentary ideas.The flood of legislation should be stoppedSome means should be devised to stop the fifteen thousand bills which come into the House ofRepresentatives in a single session of Congress. Three fourths of these bills would never have had abeing had we adopted the modern parliamentary system of government, wherein the ministryrepresenting the prevailing party prepares bills and limits their introduction. Open public discussion ofproposed acts has practically ceased to exist in the House of Representatives, and the Congressman,with no opportunity for attaining fame, contents himself by getting on as prominent a committee aspossible, and by gaining favor with his constituents through procuring for them private acts and speciallegislation. These measures are hardly ever discussed in the open House, they are simply an allotmentto each member to aid him in procuring support in his district. As a result we have the mostextravagant government in the world. Our River and Harbor Bill alone, in the last session of Congress,was greater than the total cost of government prior to 1860. Congress and the President expendedabout $2,000,000,000 of the people's money in the Fifty-ninth Congress, at least a billion more thanshould have been. The way to stop this vast expenditure is to provide that no private pension bill or anyother kind of special legislation shall be passed by Congress. The claims for pensions can be adjustedby the Commissioner of Pensions. The other claims upon the government should be adjusted by theCourt of Claims. General legislation should originate and be freely discussed in the open House, andthe autocratic powers of the Speaker, which we have described, should be taken away.The true test of a good constitution is that it allows the voice of the people readily to be reflected inlegislation, and that it calls into existence and keeps alive the political action of the people. OurConstitution does not permit this. Whenever a majority of the people can easily enforce their will uponthe government, we shall have government by the people. With our present Constitution Republicansand Democrats fight a little in the open House, and then connive and collude behind the doors of thecommittees in aiding each other to pass all kinds of special and private bills requiring extravagantexpenditure of the people's money. There is no such thing as reflecting the will of the people, except byreal party government, such as does not exist in this country. The ideas of the ordinary Democrat orRepublican in Congress upon public questions are hazy and indefinite. What we need in this countryare parties that contend for principles, and not for plunder. What we want more than military or navalacademies, are schools where men can learn something of constitutional law, international law,political economy, and principles of government. The ordinary Congressman has plenty of unverifiedconvictions resting upon strong sentiment, and maintains them with perfect confidence, but seldom ishe a master in knowledge of government and of public questions. When will the time come in ourcountry that a large body of men, as in England, are able and willing to give thirty or forty years to thestudy of public questions, with true devotion to the public welfare, and without any other recompense"That the said Secretaries, the Attorney-General, and the Postmaster-General shall attend the sessions of the Senate on theopening of the sittings on Tuesday and Friday of each week, and the sessions of the House of Representatives on theopenings of the sittings on Monday and Thursday of each week to give information asked by resolution or in reply toquestions which may be propounded to them under the rules of the Senate and House; and the Senate and House may bystanding order dispense with the attendance of one or more of said officers on either of said days."

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than the approval of their countrymen? In other countries, men born to wealth come into the worldsurrounded with traditions of public service. Here the only ambition our wealthy young men appear tobring from college is to make more money than their fathers, and to live more luxuriously.The right kind of party government a blessing, the wrong one a public cursePolitics as a trade has been the curse of the United States ever since the Civil War, and will continue tobe until a new line of men with new ideas of their duties to their countrymen are heard in the House ofRepresentatives. Democracy will never be strong until it both has opinions on public questions andthen has an opportunity to embody those opinions in legislation. Party government in our country willbe the curse it has been for many years until our government is so constituted that party principles,reflecting the different opinions of the people, have a chance to come forward in public discussionbefore being embodied in legislation. Party government will exist only upon the surface so long as thepublic lives and acts of the members of Congress are hidden behind the doors of a secret committee.Corruption will find in these committees more and more its unfailing shelter, and usurpation will go onas it has unless the whole system of government is rearranged upon a basis where the people can knowwhat is going on.If the people wish to rid themselves of the rule of a small class of men who control the trusts andrailroads in this country, let them make an end of this kind of government. Let all things in their publicassemblies be done in the open. Let them insist that these tens of thousands of private bills shall bedone away with absolutely. Let them have an opportunity to know what their representative is doing,and then let them put up an almighty fight against him whenever he goes amiss. This is the one hopefor the existence of anything like free government. It is only when the political party in power isobliged to take upon its shoulders all the mistakes of government, and to become the target of allcriticism against government, that there is any such thing as party responsibility. To-day the peopleknow little about their representatives. They return them for being good fellows, and for their ability toget government jobs for their district leaders, but the merit of the public measures which they supportis about the last thing on which their return depends.Presidential term should be lengthened and power of independent appointment extendedAnother change which would bring salutary results is to make the term of the President seven yearsinstead of four, and take away the right of reflection. The President should also be given the power toappoint, without the advice and consent of the Senate, the ambassadors, consuls, judges, and otherofficials of the United States whom he now nominates. The result of requiring the consent of theUnited States Senate to these nominations has been to make the Senators, to a certain extent, themasters of the executive, and to aid them through this patronage in building up party machines in theirseveral states. The Senators of any particular state, where nominations are to be made, simply say tothe President that their consent must be obtained to the nomination or that their associate Senators willnot confirm it. In this way they destroy the intent of the framers of the Constitution that the Senateshould consent to all the nominations of the President, except where the person nominated was animproper person for the position. This required consent of the Senate to the President's appointmentshas united the legislative with the executive department, and tends to destroy that separation ofcoordinate powers which was the desire and pride of the men who framed the Constitution. ThePresident should be held responsible for appointments; if they are bad appointments he should not beallowed to divide responsibility with the Senate, if good he is entitled to all the credit of making them.Federal UsurpationElectronically published by Family Guardian Fellowship

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In connection with this change in the appointment of the officials of the United States, the term of allthe inferior appointees, which is now four years, should be made indefinite in time; and theappointment of all officials of inferior grade should be transferred from the President to the heads ofdepartments, to whom they should be responsible for the efficient conduct of their work. In all thehigher grades of appointments, aside from those of ambassadors, public ministers, heads ofDepartments, and judges, a high-grade examination in law, economics, and public administration oflaw, such as is found in the civil service of Germany, should be adopted. There is no greater reproachupon our country than the kind of consuls which we send to foreign countries. If men were selected forthose positions because of their acquirements and character they could be most efficient aids to theimporters and exporters of our country. With indefinite terms of office established for all appointees,instead of four years, no officeholder should be removed from office except for misconduct. Astatement in writing of the particular kind of misconduct complained of should be served upon him,and a real hearing with counsel and witnesses should be given him by the head of the department towhich he belongs. A permanent public service of a higher grade could thus be brought about and thespoils system to a considerable extent eradicated.Popular election of U.S. SenatorsAnother amendment to the Constitution should provide for the election of United States Senators by amajority of the voters in each state. Eighteen states have already passed laws in favor of this measure.Five times has a bill proposing such an amendment passed the House of Representatives by an almostunanimous vote, and on each occasion it has either been lost in the Senate or disposed of withoutreaching a direct vote. Such an election would have many good results. It would entirely remove thedeadlocks which have been seen in the legislatures of the states of Delaware, New Jersey, RhodeIsland, and other states in recent years; also, it would remove the cause for corrupting state legislatures,which has been so conspicuous in recent elections in Colorado, Montana, and other states. Again, theelection of the members of assembly in the different states, in years when a United States Senator is tobe elected, is diverted from the real purpose of the legislature. The tendency of such a contest is toarray the people in political parties, while about the only difference between the election of the Senatorof one party and the Senator of the opposing party, under our present rigid Constitution, is thedisposition of the spoils of office to the faithful henchmen who marshal the forces at the polls for theone or the other candidate. Give the people direct nomination of United States Senators, and submittheir election to the great body of the voters of the state, and many a present representative in theSenate of the sugar trust, the steel trust, the railroads, the coal barons, the tobacco monopoly, and theexpress companies would be left in private life to continue his business as an attorney or trusty agent ofthese organizations.Second Session of Congress should not follow a Congressional electionThe sessions of Congress should be so arranged that the second session will not occur after an electionwherein a member who has been defeated continues to represent his district. Such a member has nomotive, in such a session of Congress, to carry out the will of his constituents who have rejected him atthe polls. He can avail himself, if he desires, of the secrecy of the committee to hide his action from themembers of his district, and even if it is known, he cares but little, for the people have already declaredagainst him. In the session of Congress of 1906-7, we saw a Representative from the state of NewYork who was not to return entertaining Congressmen at champagne dinners, thereby seeking thepassage of the Ship Subsidy Bill. Another member from Ohio, whom the people had refused toFederal UsurpationElectronically published by Family Guardian Fellowship

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nominate, sought to take the people's money in the amount of many million dollars and appropriate itto this private enterprise.Tax monopoliesBy an act of Congress under date of July 13, i866, a tax of ten per cent was imposed upon the noteissues of state banks for the purpose of destroying them. How easily could Congress impose a tax often per cent upon the capital of monopolies, and thus end their existence. We suggest this to theattention of our President, who is so strenuous in his opposition to these monstrous combinations ofcapital, and we also urge upon his attention that by simply removing the duties upon imports of likeproducts to those manufactured by the trusts their power to rob the people would be greatly impaired.But in that case, to what source would the political parties look for the money necessary to carry onnational and Congressional campaigns?Private bills and special legislation the source of corruptionWe have reduced the responsibility of members of the House of Representatives and of Senators to thelowest point. The Senators of Delaware, of New Jersey, of Rhode Island are responsible only to theirown little states. A Representative from a district in the great state of New York is responsible only tohis immediate constituents. The Senators from Nevada are permitted to participate in the governmentof all the rest of the United States, without the slightest responsibility or accountability to those states.As the country grows the separate interests of all the people diminish. The only way to increaseresponsibility is to cut up by the roots the whole system of private bills and special legislation, and tolimit the legislation of Congress to general taxation, war, treaties, foreign and interstate commerce,postal service, bankruptcy, copyrights, patent rights, naturalization, and coinage, objects which are ofcommon concern to all the people. The power to vote the people's money away in secret committeerooms has resulted in the most extravagant government ever known in all history, and hundreds ofmillions of dollars are used not only to build and maintain navies and armies, to promote agriculture inthe separate states, to prosecute the business of building reservoirs and selling water to farmers, but tohide usurpation in a hundred other different ways. Will the people ever awake to the danger of suchgovernment and really assert their power and destroy the existence of the two political machines, notparties, that have so thoroughly betrayed their interests? There is only one way to do it, and that is toshut off the private and special bills, and limit legislation to the subjects over which the states haveconferred power upon Congress. With such a limitation, and with legislation carried on in the opensession where everyone can see and hear what is going on, there would be a probability ofimprovement in affairs.Corrupt governments produce dictatorsThe existence of political parties which really represent the opinions of the people and which act invigorous opposition to each other is the hope of the country. The parties of to-day do not represent theopinions of the people, but represent political machines which exist for the purpose of securing to thefaithful henchmen the spoils of office. No man who really has convictions on public questions, andwho hates corruption, can attain any party standing in any political party to-day. The party stands forgraft and nothing but graft. The pity is that by and by the people will come to regard both parties asseeking spoils of office only, and will become so disgusted with them as to accept for a leader someunscrupulous demagogue, rich in promises and glib of tongue; or it may be that the President, with theconsent of the people, will step in and take the entire control of the whole government. Let me give theFederal UsurpationElectronically published by Family Guardian Fellowship

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reader an illustration. In 1894 an exposure was made before the Italian Parliament showing that Crispi,the Italian Prime Minister, had received corruption money from a bank at Rome. Thereupon a strugglecommenced between Crispi and his opponents, with the result that parliamentary government wasvirtually suspended. The King of Italy paroled Parliament, and for a considerable time he imposedtaxes without legislative sanction, the people, because of their disgust at the corruptions of theChamber of Deputies, allowing this to be done without objection.There is danger of such usurpation in our own country. The way to avert it is to destroy the spoilssystem, send the bosses and the cheap politicians to the rear, amend the Constitution as indicatedabove, select a higher class of Representatives and Senators, limit legislation to general subjects ofcommon interest considered in open session, and make the political parties fighting parties upon publicmeasures and not mere machines depending upon corruption and graft. We long have canonized ourConstitution, we have regarded the man who condemned it as unpatriotic; let us now learn that aConstitution framed one hundred and twenty years ago must necessarily be imperfect to-day, that itmust be treated like all such productions of man as becoming defective in time, and that it must beamended to meet existing conditions rather than to allow government to be carried on by usurpation ofpower.The ReferendumThe way to make a state strong is to increase the power of the people and make them partakers throughthe referendum in the control of important legislation affecting their state, and especially their cities. Inthe twenty years between 1874 and 1894, the Swiss Federal Assembly passed one hundred andseventy-five laws, nineteen of which were reviewed by the people under the referendum. Besides thesenineteen laws, eight amendments to the Constitution were also reviewed under the referendum, andtwo more laws were brought forward by the initiative, so that in twenty years the people of the SwissConfederation voted upon twenty-nine different questions. Sixteen of these laws and amendments wererejected and thirteen approved.The most beneficial result of the referendum is that it separates public issues from men, and gets thepeople into the habit of considering the advisability of laws upon their merits. It keeps therepresentatives of the people in close touch with public opinion, because if public opinion is sufficientto petition therefor, the action of the representatives must be submitted to the will of the people. Astrange result about the government of Switzerland is found in the fact that whereas in the German andAustrian Empire the people speaking different tongues have been quarreling over their language andtheir customs, yet in Switzerland, where the people are German, French, Italian, and Romansch, theseparate nationalities in recent years have carried on the government with few conflicts. Liberty unitesa people; oppression and usurpation divide them. Liberty gives birth to thought and action anddevelops men; usurpation suppresses individual initiative and destroys liberty. Break down the localand state governments, attempt to control these forty-six states from Washington, and you destroy themanhood of the people and create an intolerable despotism.An indignant, fighting people can obtain their rightsThe way for the people of the states to protect themselves from the usurpations of the nationalgovernment is to inaugurate in each state a vigorous state policy. They should resent with indignationevery attempt of the nation to infringe upon their rights. They should see that good men are elected tooffice, and that the legislature does its duty. They should insist that all matters of great concernFederal UsurpationElectronically published by Family Guardian Fellowship

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affecting their cities should be submitted on a referendum for the decision of the voters of each city.Year in and year out they should insist on the rights of localities to control their local matters, and onthe rights of the states to govern their state affairs. In this way more than any other will they removethe excuse of the national government for the exercise of usurping powers. The passage of the MullerBill by the Illinois Legislature, submitting the question of municipal ownership and the operation ofcity railways to the voters of Chicago, is said with one blow to have struck down graft legislation, andto have destroyed the corrupt organization of the prevailing party in Illinois at that time.If the citizen would preserve the dignity and importance of his state government, which is the guardianof his liberty, of his property, of all his domestic relations, and of everything which he holds dear inthis life, he must be vigilant to see that it is constantly improved and worthy of the people's confidence.The state government, if honest and vigorous, can alleviate most of the evils of which the peoplecomplain, so far as law can alleviate evils. As Machiavelli well said: "There are no laws and noinstitutions which have power to curb a universal corruption." The state legislature createscorporations, and the same power which creates can provide that in case of disobedience to its laws thelife of the corporation shall be forfeited. The state is under no obligation to allow a foreign corporationto carry on business within its confines.But for the control of Congress over interstate commerce the states could destroy every oppressivetrust in this land. The reason why trusts have become so powerful is that the national governmentalways has insisted that the state should not forbid the bringing of the goods of the trust within theconfines of the state, because it interfered with the nation's control over interstate commerce. Let thepeople amend the Constitution and take from the national government the power to control interstatecommerce, then through their state laws they can make short work of the trusts. The attempt to controlthese lawless combinations under the interstate commerce clause of the Constitution will never proveeffectual. The United States courts have no power except such as is given them by the Constitution,and cannot avail themselves of common-law powers. The state courts have unlimited power, except aswithheld from them by the state constitutions, and can avail themselves of all the original authority of asovereign state and of all the rules and customs of the common law. The result of these differences intheir judicial power is that the national courts, in their criminal as well as in their civil jurisdiction, aregreatly hampered by limitations, while the state courts with original and almost unlimited jurisdictionhave the power necessary to root out evils.But more effective than laws, more effective than courts, is the indignation of many strong men atabuses which the people's good-natured tolerance have allowed to wax great in power. Until that spiritof indignation is stirred to action all over our land and the people are ready to fight for the vindicationof their rights, there is little hope of effective reforms. We need the spirit of old Peter Muhlenberg,who, in Revolutionary days, to the astonishment of his congregation, flung aside his surplice,disclosing a Continental uniform, and exclaimed: "There is a time for all things a time to preach anda time to pray; but there is also a time to fight, and that time has come! "

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